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Promoting the Indigenous Voice: From Empire to Legitimate Recognition of 60,000 Years of History

By Denis Bright

As support for the Voice referendum tightens, more discussion about the rationale for the constitutional change might assist voters who are now in the doubtful category on this issue.

The latest YouGov Newspoll shows that Peter Dutton’s most ardent supporters of the No Case are elderly Australians in conservative regional electorates. In contrast, 65 per cent of voters in the 18-34 age group support the Voice proposals.

The trendlines in support for the Voice referendum should be cause for concern in an electorate that is currently under siege from interest rate increases, general cost of living increases and quite unaffordable housing costs.

Australia’s founding fathers at the Australian National Conventions did not share Peter Dutton’s reluctance to amend the wording of constitutional drafts during the 1890s. Members of the National Convention were elected on a male only franchise in some colonies and appointed by colonial governments in some locations. Mindsets have radically changed on these issues well over a century later.

This flexibility was extended to the omission of Western Australia from the Commonwealth of Australia Constitution Act of 1900 as carried by both houses of the British parliament. The Australasian Federation Enabling Act 1900 to initiate the successful referendum in that Colony did not receive royal assent from the WA Governor until 13 June 1900. As Premier of WA, Sir John Forrest insisted on provisions for joining the Commonwealth of Australia, including construction of a federally funded trans-continental railway and special provisions to diversify infrastructure. There was no mention of Indigenous welfare in this legislation. S.26 of the final constitution had made tentative provisions for the inclusion of Western Australia in the Commonwealth of Australia with five federal electorates reserved for WA on a similar basis to the five Tasmanian seats.

Agreement between the Australian colonies on the draft constitution was always difficult in a continent that was recovering from the effects of economic depression in the early 1890s.

Modifications were needed when initial local referenda were defeated in NSW and Victoria. In Queensland, the rights of contracts over the use of Kanaka labour were preserved pending financial compensation for the repatriation of indentured labourers from the sugar-fields. Some might call these arrangements protection for slavery as the indentured were coerced to come here by dubious means.

Somehow the rights of 300,000 Indigenous people were overlooked by that concept of Terra Nullius as explained by the Australian Museum:

Terra nullius is today used as a catch-all phrase to explain how Australia was founded; to justify and legitimise the dispossession, dispersal, and inhumane treatment of First Nations peoples. This Latin term means “land belonging to no one”, which has been interpreted as a complete absence of people and additionally the absence of “civilised” people capable of land ownership.

The Proclamation of NSW Governor Richard Bourke in 1835 implemented the legal principle of terra nullius in Australian law as the basis for British settlement. This was 47 years after the arrival of the First Fleet. Terra nullius was overturned in the High Court of Australia’s Mabo decision in 1992, which recognised Aboriginal and Torres Strait Islander people’s continuing connection and rights to land through Native Title.

The Australian Museum notes that Australia is the only member of the British Commonwealth which does not have a treaty or even an acknowledgment of the existence of First Nation’s People in its constitution.

UN resolutions which are often lampooned by Australian conservatives have intervened to open up some of the blind spots in the Australian constitution relating to Indigenous Australians.

Australia’s foreign affairs powers have indeed enabled Australia’s ratification of UN Protocols to widen the federal government’s constitutional authority on matters relating to issues as varied as environmental management, human rights and the rights of Indigenous people. These were not topical issues during the 1890s when National Constitutional Conventions were working on drafts for the new constitution.

The concept of an Indigenous voice perspective to assist legislators did not even rate a mention in the constitution as Indigenous Australians were not included in the census returns until after 1967.

The UN General Assembly carried the Declaration on the Rights of Indigenous People in 2007. Ironically, Australia, New Zealand, Canada and the USA were the only four countries to vote against this resolution which was carried by a vote of 143 to four with eleven abstentions and 34 abstentions. However, Australia still ratified this agreement on 3 April 2009. This ratification can be used to strengthen the case for an Indigenous perspective on all areas of federal public policy. This Indigenous perspective would be enhanced by passage of the Voice referendum, but the existing UN resolution needs to be reinforced by passage of the Voice referendum.

A Proposed Law: to alter the Constitution to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice.

Do you approve this proposed alteration?

If the Voice referendum is carried, Section 129 of the Constitution will read:

“Chapter IX Recognition of Aboriginal and Torres Strait Islander Peoples

129 Aboriginal and Torres Strait Islander Voice

In recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia:

i. there shall be a body, to be called the Aboriginal and Torres Strait Islander Voice;

ii. 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;

iii. 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.”

Other countries like Canada can use parliamentary processes to change the constitution if the change is endorsed by two-thirds of the provincial assemblies.

The Canadian Constitution Act 1982 mentioned the welfare of Indigenous people in the preamble and in Sections 35 and 25. Section 91(24) of the original Constitution Act 1867 assigns jurisdiction over Indians and Lands Reserved for Indians to the federal government. These long-standing mainstream commitments in Canada have not always been incorporated into the advancement of the welfare of its own Indigenous people.

Requests from Indigenous Australians for constitutional changes on their behalf surfaced under the government of Malcolm Turnbull. The National Constitutional Convention met later at Uluru in 2017 with representatives from 250 Indigenous leaders from various communities, nations and languages. This Convention proposed an Indigenous perspective for Australians and their government through a Voice to Parliament with a subsequent commitment to truth-telling and agreement-making.

The Uluru Statement from the Heart

The Uluru Statement from the Heart is an invitation to the Australian people. We ask Australians to accept our invitation to walk with us in a movement of the Australian people for a better future. We call for the establishment of a First Nations Voice enshrined in the Constitution and a Makarrata Commission to supervise a process of agreement-making and truth-telling about our history.


The federal LNP balked at the possibility of a Voice referendum on behalf of Indigenous Australians through the politically risky mechanism of a referendum to enshrine this commitment into the Constitution. These reservations were understandable given Australia’s poor record on constitutional change even with bipartisan support.

The Voice referendum is an opportunity to commence rewriting Australia’s future with a new perspective that has been undervalued in the past 253 years of history.

In conclusion, I want to end with an emphatic anecdote on the artwork of Emanuel Phillips Fox (1865-1915) in his portrayal of The Landing of Captain Cook for the National Gallery of Victoria in 1901. This artwork is not a simple endorsement of British occupation of Australia. It captured the artist’s interpretation of Cook’s personal agenda but other dynamics are at work in the busy scene at Botany Bay on 29 April 1770. In the context of the artists other creations from The Belle Epoque in Europe, I cannot imagine that he was an avid supporter of British occupation of Australia.

A thesis on the development of the artist’s work was researched by Dr Biruta Ruth Zubans for the University of Melbourne in 1979 to assist in resolving this issue.

Meanwhile, The Landing of Captain Cook is an enigma as Captain Cook’s team storm the shoreline at Botany Bay to the terrified amazement of two Indigenous inhabitants. A Yes vote for the Voice might assist in addressing the imbalance.



Denis Bright (pictured) is a financial member of the Media, Entertainment and Arts Alliance (MEAA). Denis is committed to consensus-building in these difficult times. Your feedback from readers advances the cause of citizens’ journalism. Full names are not required when making comments. However, a valid email must be submitted if you decide to hit the Replies Button.


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  1. Anthony Judge

    The case for the “Voice” has been repeatedly made in this context. There are many reasons to support it. However, as I have repeatedly said before in this context, little is said about the case for the “Ear.” The title reads: Promoting the Indigenous Voice: From Empire to Legitimate Recognition of 60,000 Years of History. Nothing to be said about Promoting the Parliamentary Ear after Centuries of Ignoring the Voices — beyond “Hear! Hear!”?

    As I have quoted before from Maggie Smith: “Just because I’m looking at you when you talk, don’t think I’m listening – or even interested.” Is there any evidence that those constitutionally obliged to listen to the Voice will behave otherwise? Unmentionable constitutional “deafness”?

    So it is potentially just a matter of symbolism, PR and tokenism? Is that all the optimists will achieve? Is that all they can hope to achieve? Would a No vote cause the matter to be reviewed more appropriately? Why have none of the options not been played out in simulations with the various stakeholders to give the jaw jaw an element of reality?

  2. Leila

    An enthusiastic case for The Voice.

  3. Miriam

    I have no hesitation in supporting the Voice Referendum.

  4. Max Gross

    The utter bullshit and brazen, bare-faced lies being spread by Dutton and his co-conspirators is breathtaking. Honestly, how stupid does one have to be to swallow that guff when a simple internet search blows all their fallacies right out of the water?

  5. Tessa_M

    Empowering indigenous Australians is never at the expense of other Australians who are having a tough time.

  6. James Robo

    Keep up your research on topical issues, Denis

  7. B Sullivan

    “60,000 Years of History”

    Don’t you mean 60,000 Years of pre-History? Can you provide some evidence of this history – this account of what happened in Australia before colonisation, without relying on post-colonial archaeology or fobbing us off with unreliable oral histories? In the celebrated SBS TV series about the history of Aboriginal Australia the first episode began with about five minutes covering creation myths and then jumped straight to the arrival of Europeans. So much for 60,000 years of history. It appalls me how little curiosity both the Aboriginal and the general community have about what really happened during that 60,000 years of prehistory.

    Can you or anyone else tell us about the history of the people who Aboriginals refer to as the Gwion-Gwion whose neglected and vandalised art work, possibly the oldest rock paintings in Australia, is evidence of a completely different culture that lived in Australia at least 40,000 years ago. Were they the First Nations? What happened to them? Are they being cancelled from history because of the mistaken belief that acknowledgement of their existence might jeopardise native title rights. Why aren’t they being celebrated, and investigated? Will the amendment of the constitution recognise them or erase them from history?

    In the painting you refer to where is the welcome to country ceremony? One of the natives carries a shield, evidence that they are not hunters but warriors. Hunters don’t carry shields. Shields are only used as defence against humans not animals. And remember Cook was far more experienced at dealing with ‘first encounters’ than any natives in Australia.

    “I cannot imagine that he was an avid supporter of British occupation of Australia.”

    Nobody wanted to occupy Australia. People were forced to live here. Fox lived in an age that could be called the age of prisons when people such as Jeremy Bentham were designing new kinds of gaols, and
    the Quakers in the new United States were building prisons capable of imposing complete solitary confinement on all inmates in order to develop their spiritualty. In those days there was an intellectual obsession in experimenting with all forms of penal servitude.

  8. Burleigh waters

    Indigenous people once dominated the population of the Gold Coast and the Northern Rivers. How could their civilization be forgotten in the Australian Constitution?

  9. Konn

    B S, I’ve noticed there are 2 distinct sets of facial features within and/or across aboriginal communities. Remote communities which have been largely untouched by modern civilization offer the best examples of the ‘original’ aboriginals. Of the 2 groups, one appear more negroid in features, much like the highlanders of PNG or Solomon Islands, and the other has features that are more modern Asian.
    The first entered Aust prior to the end of the last Ice Age when rises in sea levels cut land bridge migration routes some 10,000 years ago. So technically there could be a debate about which ‘original’ group of aboriginal settlers will be referred to in the revamped Constitution, but really, does it matter? Society does not have to go down the racial identification route based on DNA to say who is or is not ‘aboriginal’, but then again, we have entered the Age of Peak Stupidity.

  10. Michael Taylor

    Konn, you are correct, there were two distinct groups of Aborigines. More than two, actually.

    The Aborigines of central Australia were what archaeologists call “robust”, whereas those of the Melbourne region (in particular) were more “gracile”, similar to the Asian people. Neither remain in their original form, due to gradual inter-breeding.

    It gets even more interesting. The people of Lake Mungo – who left the lake region when the lakes dried up 15,000 years ago – were different again. They seem to have disappeared off the face of the Earth as there is no archaeological record of whatever happened to them. The best assumption is that they too were “bred out”.

    There may have even been a fourth: people of the Kimberley region dating back over 40,000 years. There are no archaeological remains of those people, and their time on this Earth is only recorded in stories.

    Incidentally, the oldest archaeological remains ever found have been dated at 63,000 years – from a rock shelter in Queensland.

    When we lost 17% of our continent at the rising of the seas 9,300 years ago at the end of the last Ice Age it is fair to assume that we also lost our earliest archaeological evidence of occupation.

  11. Phil Pryor

    For what it is worth now, Manning Clark wrote of our indigenous as being Carpentarian, Murrayian or Tasmanian, inadequate now as a categorisation system. Too much has been lost to hope for a “pure” resolution in studies. But, our constiturion is there to establish essentials to the historical, social, political foundations of the nation and so indigenous occupation before the Europeans is a core essential. One well established lobby grop for consultation is behind the idea of a “voice” and it will not have powers of funding, veto, initiating legal positons, etc., merely a sensible pathway and a short cut to avoid past criminality in actualities, behaviour, omissions. The Calma-Langton model is useful and I support that as a central idea. The Dutton-Joyce knuckle scrapers are Foxy Poxy self deluding worriers about backyards gone and being told… all rubbish.

  12. Peter Casey

    It never ceases to amaze me that people bring up grand, fanciful and generally false reasons for voting “No”. The reality is that the real and in fact, only reason to vote “Yes”, is because it is simply the right thing to do and will do something that should have been well over 200 years ago.
    A “Yes” vote will recognise and acknowledge a factual reality, First Nations people were here for 60000 years before the British arrived and took possession (the country was not handed over) and acknowledged that the dispossessors and now, those that continue to benefit from that dispossession, should talk to the dispossessed.
    The parliament will decide the practicalities and mechanisms of how it all works which will allow the naysayers to have a say in exactly how it will function and that means all their fear mongering will be heard, decided upon and debunked.
    I’ll be voting “Yes” because, after so long, and so many wrongs, it’s the just and right thing to do, it’s as simple as that.

  13. Clakka

    For me the Voice in the constitution is an excellent mechanism, if only to provide an obligation on succeeding parliaments and executive government to be counselled by First Nations’ representatives on matters that concern them. That removes the disgraceful paternalistic platitudes, unscientific hogwash and bs excuses that for 200+ years has seen the ‘white masters’ kill them, thieve their land, place them into involuntary servitude, steal their children, ban their languages and customary rites, generate and institutionalise hatred of them and generally attempt to wipe them from the face of the earth.

    That 200+ years of imperialist garbage pervades today, as one can readily see, there are those that still ascribe in nuances to such barbarity. Yet these barbarians are allowed to vote, move freely in society and hold full title to land.

    It is no irony that via the States, there are many treaties underway. I look forward to a Commonwealth Treaty. As for the ‘Truth’, I’m pretty well across it, but learning more all the time (interesting observations @ Michael Taylor). There will always be wretched naysayers despite the truth, but in these matters they will fade beyond the dust into irrelevance.

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