In an earlier post I suggested that a reason frequently offered for advocating constitutional entrenchment of the Voice change is that, unlike legislation alone, constitutional change would insulate the Voice from being destroyed by a Conservative government.
But I argued that constitutional entrenchment could not guarantee an effective Voice because it cannot guarantee adequate funding or the right to have the Voice’s formal advice tabled in Parliament.
These things, as well as the actual mechanics of the Voice, depend wholly on the legislation to implement the voice.
So why not just legislate it?
Perhaps I overlooked a deeper reason why Aboriginal leaders have concluded that reconciliation requires constitutional change, and not merely legislation. This is tied up with the concept of Aboriginal sovereignty. What is this concept about?
In her 2020 essay “Understanding Sovereignty’ (available online) Marcia Langton argues that in the Mabo decision the High Court recognised that although the right to claim native title survived colonisation, the full body of Aboriginal laws, of Aboriginal sovereignty, was held to be incapable of recognition. It needs to be recognised.
But Langton also recognises the reality of colonisation. The whites are not about to up and leave. So, co-existence within post-colonial Australia is inevitable. It follows that the only possible expression of self-determination in postcolonial Australia is that which could be achieved through “partnership”. Langton argues that Australia’s nationhood should include (legal) recognition of the ancient jurisdictions of Aboriginal law, and their pre-colonial existence as nations.
This reference to “nations” should not be confused with how most Australians probably think of them- which is as nation states.
There were no nation-states in pre-colonial Australia. But there were what Langton refers to as “polities”. These were groups, or “nations” of Aboriginal peoples, of which there were about 500. Each nation shared a collective identity, operated in accordance ancient laws, and had a capacity to collectively mobilize resources.
In speaking in favour of the Voice, Pat Dodson has referred to ‘First Peoples’ rather than ‘First Nations’. I think ‘First Peoples’ is term less likely to cause confusion.
Langton quotes Noel Pearson who argues that nation-states like Australia should not deny the existence of distinct peoples within their territories. Pearson says that insisting upon assimilation as a requirement of nationalism does not promote unity- but ethnic destruction and resistance.
Many (although far from all) Australians have come to embrace multiculturalism as both a fact of life and as a desirable aspect of Australian society. This may help the ‘Yes’ case. And yet the politics of Aboriginal Sovereignty seem to require something more than just support for a multi-cultural Australia.
Aboriginal Sovereignty is not just about recognising Aboriginal Australians as another ‘ethnic group’ or the celebration of Aboriginality as a quaint culture of the past to be dusted off at the opening ceremonies of conferences and events.
Policy discussions about multiculturalism and immigration may be problematic for Indigenous people. While they might recognise the problems experienced by immigrants and other “people of colour‟ they might also regard these immigrants as settlers who continue the process of settling on lands that were appropriated from Indigenous peoples. Immigrant cultures may have been inhibited from free expression under Australia’s previous assimilationist policies and immigrant groups may have experienced racism or discrimination. But they have not been subjected to war, genocide, or dispossession, not in this country anyway.
Langton also argues that Aboriginal sovereignty is not just a legal concept. It is also a spiritual one.
The 2017 Uluru ‘Statement from the Heart’ explains:
“Sovereignty is a spiritual notion: the ancestral tie between the land, or ‘mother nature’, and the Aboriginal and Torres Strait Islander peoples who were born therefrom, remain attached thereto, and must one day return thither to be united with our ancestors. This link is the basis of the ownership of the soil, or better, of sovereignty. It has never been ceded or extinguished and coexists with the sovereignty of the Crown”.
I’m more comfortable commenting on legal arguments than spiritual ones. So, I won’t say more about the passage above than to observe that Aboriginal culture is hardly alone when it comes to stories about reunification of the dead with their ancestors-ashes to ashes, dust to dust etc.
Interestingly, in her essay, Langton does not insist that this recognition can only be meaningfully achieved through amending the Constitution. On the contrary, she refers to the possibility of this future recognition occurring by either “formal constitutional or legislative means”.
She also says:
“The question of how to bring about constitutional amendment in Australia is another issue that remains hotly debated by Indigenous leaders. To achieve the level of community support needed to pass such an amendment at a referendum would require bipartisan political support, which in turn entails the need to secure support from electorates in rural, conservative, and regional Australia.”
Obviously the bi-partisan support Langton thinks is needed for the referendum to pass is yet to eventuate and appears unlikely to do so.
Aboriginal Sovereignty is not straightforward to grasp and the detail of it, as with detail regarding the Voice’s likely structure and powers is unlikely to be contemplated by most Australians in deciding how to vote in the referendum.
This might lead to the Voice’s defeat. But hopefully it won’t be decisive.
Jack Waterford, writing on ‘Pearls and Irritations’, thinks a chief problem for the yes side is that it is trying to oppose the No arguments with logic and reason alone. They are being too ineffective in arguing the “feel-good” factor, the positive benefits to Aboriginal-white relations from an act of reconciliation and closure of hostilities. He thinks younger Australians especially want to see some sort of historic and symbolic act of reconciliation between white Australians and the people displaced by white settlement. They are sick of the combativeness, hostility, and denial of an older generation of politicians.
I hope Waterford is right. But I have my doubts.