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A Voice from the Heart

Legal equality and the politics of disappointment.

· 14 min read
A Voice from the Heart
Denise Bowden, CEO of Yothu Yindi, signing the Uluru Statement from the Heart, in Central Australia, 29 May 2017. Wikimedia Commo

In May 2017, representatives of Australia’s indigenous peoples—Aboriginals and Torres Strait Islanders—met at Uluru, the great monolith at the physical centre of the continent which serves as the symbolic heart of the country. After four days of deliberation, they released an appeal to the Australian people called the Uluru Statement from the Heart.

The language of the Statement is concise, temperate, and moving. Its tone is neither that of an importunate beggar nor of an incendiary activist. It is one of sorrow yet hope, of dignity and amity, of one people looking another in the eyes to negotiate the terms of their fraternal association. Thus, it does not speak of demands but of aspiration, of seeking and inviting, and in one place, of calling for. It asks—in a word that has come to name the ideal of Australia’s journey to a just and amicable relationship with its original peoples—for reconciliation.

In the concluding sentences, which contain its central ambitions, it says:

We seek constitutional reforms to empower our people and take a rightful place in our own country. When we have power over our destiny our children will flourish. They will walk in two worlds and their culture will be a gift to their country.

We call for the establishment of a First Nations Voice enshrined in the Constitution.

Makarrata is the culmination of our agenda: the coming together after a struggle. It captures our aspirations for a fair and truthful relationship with the people of Australia and a better future for our children based on justice and self-determination.

We seek a Makarrata Commission to supervise a process of agreement-making between governments and First Nations and truth-telling about our history.

In 1967 we were counted, in 2017 we seek to be heard. We leave base camp and start our trek across this vast country. We invite you to walk with us in a movement of the Australian people for a better future.

The graciousness of the Statement does not, of course, mean that its goals are not radical. Just how radical they are, or can be, is largely a matter of what is made of them. The Statement talks in highly general—even vague—terms of a “First Nations Voice enshrined in the Constitution” and a Commission to “supervise a process of agreement-making between governments and First Nations and truth-telling about our history.” The reference to a “First Nations Voice” is well understood in Australia to mean a publicly funded body of indigenous representatives, elected by indigenous communities, established to advise the federal parliament and government on legislative matters and executive decisions that affect indigenous peoples. The advocates of the proposal stress that such a body would be advisory only; both parliament and government are at liberty to modify or reject any advice given, though critics question how great this liberty will be in practice.

In 2017, the Voice proposal was rejected by then Prime Minister Malcolm Turnbull (though he now supports it) and by his successor Scott Morrison. However, with the election of a Labor Party government under Prime Minister Anthony Albanese in 2022, the idea has been revived and a process begun to implement it. The government has proposed a constitutional amendment to establish the Voice, with a referendum to be held later this year on a date to be confirmed. The Yes and No sides, with the government supporting Yes and the opposition supporting No, are revving up their campaigns in an increasingly ill-tempered debate.

The referendum proposal reads as follows:

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.

Readers can see that, like the Uluru Statement, the proposal gives little detail concerning the Voice, leaving its “composition, functions, powers and procedures” up to the parliament—in effect, the government—of the day (and subject to change by any subsequent government). Critics of the Voice have made much of this lack of specifics, seeing it as camouflage for the opinions of the more extreme activists, whom they are quick to quote. A more sympathetic view sees it as a willingness on the part of both First Nations Australians and the government to confer in good faith over those details and not to dictate them in perpetuity to the Australian people.

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There is indeed unpredictability about the ultimate destination and feasibility of the project. This is exacerbated by the government’s unwillingness to release its plans for Voice legislation until after the referendum. It no doubt fears that voters may confuse such plans with the referendum proposal itself, but withholding these plans risks making the government look shifty. The undeniable fact of uncertainty, much emphasised by opponents of the Voice, is not a decisive consideration in itself. Major political initiatives involve this almost by definition, and we would shrink from many acts that are just or necessary if the imponderable element alone deterred us. Certainly, there are grounds for scrupulous caution, but not for scuttling the whole idea from the get-go as undeserving of serious consideration.

Equality Before the Law

The Yes case posits that the establishment of a constitutionally embedded Voice is, in the opening words of the referendum proposal, a “recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia.” Such an acknowledgment, it is implied, would itself be an act of justice in repair for historic wrongs; an act with both tangible and symbolic dimensions. The No side argues that a body like the Voice is racially invidious, according special privileges to one race over others—unjust in its own right and a threat to national harmony in its consequences.

Any individual or group is, of course, already free to lobby parliament and government on any matter it likes; that is the currency of democratic politics. Moreover, it is right and proper, indeed often obligatory, for parliament and government to consult those whom a given law, policy, or decision will especially affect. And it is far from unprecedented for government to appoint individuals or establish publicly funded bodies to advise it. Indeed, whole areas of government could scarcely function without doing so. Presumably the No case does not object to these commonplaces. But then, if farmers constitute a group with a special stake in agricultural policy, unions a group with a special interest in labour policy, hoteliers and restauranteurs a group with a special interest in tourism and liquor policy, why cannot a race or ethnicity in principle constitute a group relative to their defining interests?

The difference, the No case argues, is that we do not pick out one such interest group—and especially not one united by race or ethnicity—and establish for it in the constitution a right and power to advise parliament and government, a privilege accorded to no one else. Yet at the same time, many (not all) on the No side—including former prime ministers John Howard and Tony Abbott—support a purely symbolic constitutional recognition of Aboriginals and Torres Strait Islanders as the original inhabitants of Australia. But in granting that constitutional recognition, they effectively concede that Aborigines are not just another interest or lobby group like farmers, unions or hoteliers and so on, groups of individuals who happen to share an interest (in better wages, conditions etc.). Rather, indigenous people have common interests qua group and not just any group but a people, a nation. They therefore have interests in being recognised and dealt with as a nation, and one badly shellshocked by an historic injustice. But if that is so then there is nothing inherently antagonistic to the ideal of equality under the law in the idea of their having a form of political participation not granted to other groups.

It might be urged that the indigenous peoples of Australia do not constitute a nation, for either practical or symbolic purposes (which is why we so often speak of them in the plural). There was no single nation prior to European colonization, only a large and heterogeneous set of different groups existing often at great distances from one another, with distinct languages and distinct (but overlapping) religions and cultural practices. Even today, there is not the sort of unity indicated by a word like “nation” in the singular, critics argue. What indigenous people mainly have in common, what has welded them together, is some striking similarities of their traditional living practices and religious beliefs, and the shared trauma of colonial dispossession with the destructive cyclone of industrial modernity it unleashed upon them.

But that, I think, can be enough. The various separate groups that once composed the British Isles were made into a people with a common identity by the successive invasions and colonisations—Roman, Viking, Anglo-Saxon, and Norman—and by the spread of Christianity. The vestiges of traditional medieval ways of life were swept away by the enclosure movements and the Industrial Revolution to impose a new common city-based way of life built on science and technology. The same story can be told in many other cases. It is a myth that only non-European peoples have suffered this fate and Europe has been exclusively a perpetrator. The results provide us with ample precedents of national identities created by these contingencies of history and recognized today by various political accommodations consistent with the civilized principle of equality under the law.

Australia does indeed owe that principle to its British legacy. But if any country in the world today has been at pains to acknowledge and include in its body politic distinct peoples with varying degrees of self-government under an overarching sovereign power, it is the United Kingdom. That state is composed of no less than four distinct nations, each now with powers of self-government far exceeding anything envisaged in the Voice, or the as-yet largely notional aspiration of a treaty. This arrangement has proven not just its feasibility but its ability to flourish. And while the UK does not have a single dedicated written document that counts as a constitution, the union of England, Scotland, Wales, and Northern Ireland is nearly as integral to that kingdom’s structure as the institutions of parliament and the common law (perhaps in something like the way the six states and two territories are to the architecture of the Australian commonwealth). Under this unwritten constitution, the Parliament of Westminster retains ultimate sovereign authority over the whole of the UK, as the commonwealth parliament must continue to do in the Australian case, whatever may be made of the notion of indigenous self-determination as a kind of (limited) sovereignty.

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Is the UK arrangement fragile? Of course, as the Scottish push for independence reminds us. Does it have a history of bloodshed, and does this—still recent in the Irish case—remain a standing possibility? Again, of course—and no one should be merely going through the motions in admitting these dangers. But peace and stability are often harder, if not impossible, to achieve without making concessions (or resorting to the unthinkable). The history of Ireland should teach us that for just one example; intransigence is no more a guaranteed road to peace than docile acquiescence. It all depends on the case. (And that, by the way—judging by the case, rather than imposing a universal formula—is the properly conservative political attitude.) Nor is fracture the inevitable outcome: there is Scotland, but there are also the relatively content Wales and the ardent Ulster. (To avoid misunderstanding: I am not advocating for anything like a distinct, self-ruled Aboriginal physical territory like those enjoyed by the nations of the UK. That is neither practical nor desirable in the Australian case. The analogy is one in principle and does not hold in every respect.) So it is not as if—as both sides tend to assume—all the dangers and uncertainties are just on one side. If the Voice might dangerously divide us, then so might not having a Voice, leaving an untended, festering wound in the country.

While it might well be true, all other things being equal, that culturally uniform countries are more stable than “diverse” ones, things rarely are equal and stability is not the only virtue in a political arrangement. In particular, there is the consideration of justice. Justice is in play when one nation (or nations) has been the victim of maltreatment at the hands of another. Though there may be disagreement over the motives and the practices of the colonizers—whether, for example, they sometimes amounted to genocide—few would disagree that British colonization of Australia’s indigenous people inflicted a body-blow upon the integrity of their communities. A body-blow, but not a fatal one. They survive, they are trying to hold together, and to some extent, reconstruct under modern conditions what they have left, and it seems to me merciless to refuse them all right or opportunity to do so. And whatever partisans might say in the heat of political argument, virtually everyone would recognize such claims of justice if they came from a community to which they belonged or were sympathetic. Few would think that if, say, in the 1940s, the Japanese had succeeded in establishing a long-term rule over the other nations of South-East Asia and Australasia, they would have been justified in refusing, if they could have, all right of self-determination to the conquered peoples.

In sum, if the coherence of Australia’s indigenous population as a single people, and the fact of a recent historic injustice against them, are granted, then there exists a moral case for something like the Voice to parliament and government that does not exist for non-indigenous peoples. But then the Voice, while indeed a special right of indigenous Australians, is not an unwarranted right and not an injustice or an affront to equality before the law. Any race or ethnic group would be entitled to the same right if the relevant conditions applied. Though, admittedly, the historical counterfactual that assumes is somewhat remote, it is not in principle different from saying that if you had been born a woman you would have been entitled to use the woman’s facilities or play women’s sports, or if you were disabled you would be entitled to use the disabled car park, and so on.

The moral heft of the worldwide historic struggle against racism since the Second World War is so seared into our consciences that we are reluctant to accord privileges to one group distinguishable from another by race or ethnicity, even when independent grounds—like historic injustice—can be found for it. This race-blind ideal is healthy as a default attitude. Those who trash it, like Ibram X. Kendi and Robin DiAngelo, are playing with fire. Support for the Voice by no means implies sympathy for the poisonous ideas promoted by those authors (for example, that any differential outcome between whites and blacks automatically constitutes “systemic” racism, or that, in the words of DiAngelo, “the question is not if racism is at play, but how is it at play?”). But to give something the status of a default attitude is not to say that exceptions are wholly prohibited. It is to say that the onus of proof is on anyone proposing an exception. I have tried to sketch one part of an account of how that onus might be discharged in the case of Australia’s Aboriginal peoples.

The Politics of Disappointment

The wording of the constitutional amendment notwithstanding, the Yes side does not put its main emphasis the way I have, in terms of the recognition of Aboriginal and Torres Strait Islanders as a people. Instead they emphasize the utility of the Voice as a remedy for the distressing facts about Aboriginal disadvantage: that despite improvements, indigenous life expectancy remains eight years shorter than non-indigenous, that levels of violence against women considerably exceed non-indigenous levels, and that the rate of indigenous imprisonment is 14 times higher than the non-indigenous rate. The Voice, we are told, by ensuring that the politicians in Canberra hear and heed what Aboriginals “on the ground” want and need, can, as the saying goes, “close the gap” between indigenous and non-indigenous life-outcomes.

This hope is far from straightforward. The main reason for scepticism is expressed with force and clarity by Warren Mundine, an Aboriginal opponent of the Voice, who, recalling the poverty of his childhood, writes: “… the only solution to poverty is economic participation … poverty, disadvantage and despair aren’t caused by lack of a voice but by a lack of economic participation.” Mundine is one of several indigenous leaders over the last 30 years who have emphasised personal responsibility, self-reliance, and integration into the national Australian economy as the true form of the empowerment which the Uluru Statement calls for. Mundine fears that the Voice proposal still smacks of an undignified attitude of dependency and even submission, treating self-determination and prosperity as things conferred by “white-fella” government, instead of assertively carved out by one’s own energetic grasp of economic independence. If he is right then, while the case might still be made that a wisely used Voice can certainly help close the gap, it is not in itself able to do the heavy lifting. The spectre arises of misplaced hopes.

Over 70 years ago, in The Origins of Totalitarianism, Hannah Arendt wrote that what she called “equality of condition”—the legal and political equality of all persons regardless of race—was “among the greatest and most uncertain ventures of modern mankind.” She feared that this formal equality would not readily translate into what we now call “equality of outcome”—equality of income, wealth, and prestige—and that the stubborn persistence of unequal outcomes would be felt more painfully once people were officially (legally) equal. The result would be a worsening, rather than an improvement, in race relations.

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We are perhaps living through something like this. The US Civil Rights movement of the 1950s and ’60s achieved formal equality for African Americans and this produced great but unrealistic hopes for rapid economic advance as well. There have of course been improvements, with the emergence of a substantial black middle class, but on most measures, the African-American population remains significantly disadvantaged. This has bred a simmering frustration that we might call the politics of disappointment. The maddening thought Why are things still not better? is the heartfelt cry of that politics. It is the silent lament of the Black Lives Matter movement behind its public invective.

Its anguish is also present in the sorrowful and sometimes angry words of Australia’s indigenous leaders when they remind us of the stubborn facts about Aboriginal immiseration. Perhaps the saddest words in the Statement from the Heart are these:

Proportionally, we are the most incarcerated people on the planet. We are not an innately criminal people. Our children are aliened from their families at unprecedented rates. This cannot be because we have no love for them. And our youth languish in detention in obscene numbers. They should be our hope for the future.

These dimensions of our crisis tell plainly the structural nature of our problem. This is the torment of our powerlessness.

The danger is that the Voice will be yet another iteration in the long cycle of failed government-centred solutions to Aboriginal and Torres Strait Islander problems, a permanent symbol of failure, shame and recrimination. One moral is that it is unwise to expect too much closing of the gap from the Voice in and of itself. As I have argued, there are other reasons for it. But equally, if the indigenous peoples of this island continent—with the help of all our goodwill—can rise to what their best representatives advocate, and forge a program of renewal that unites political representation with economic integration based on an ethic of personal and family responsibility, then maybe the Voice can be made a symbol of accomplishment, pride, and reconciliation.

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