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.
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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?
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If the Voice referendum is carried, Section 129 of the Constitution will read:
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“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.”
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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.
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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.
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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.
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