The author, an Australian law lecturer who specializes in Aboriginal and Torres Strait Islander peoples and the law, reflects on the failure of a recent referendum that advocates had hoped would bolster indigenous voices within Australia's parliament, and urges the nation to commit to advancing the rights of Aboriginal and Torres Strait Islander populations...
This comment was written on Ngiyampaa Wangaibon Country. I pay my respects to the custodians that have cared for this Country for time immemorial. I acknowledge when First Nations Peoples thrive, all of Australia benefits.
A recent Australian referendum that aimed to strengthen the presence of Aboriginal and Torres Strait Islander Peoples within the country’s government failed due to a dearth of voter support. The objective of the initiative was to create an autonomous First Nations body known as the Voice, which would advise policymakers on matters concerning these populations. But for a referendum to be successful, the majority of overall voters, and the majority of voters in a majority of states, need to have voted yes. Neither threshold was reached for the Voice proposal.
Following the referendum defeat, after a week of silence and mourning, First Nations Leadership in support of the yes vote circulated an open letter to the Prime Minister, Members of Parliament, the Australian public and media. The letter reflects on the defeat, noting the widespread devastation and grief felt, the impact caused by the withdrawal of bipartisan support, the spread of disinformation and misinformation, the increase in racism, and concludes with a commitment to upholding the vision of the Uluru Statement from the Heart, particularly with children and future generations in mind.
In a webinar held on October 25th, Professor Pat Dudgeon mourned the impact on First Nations children, stating ‘young people are feeling rejected in their own country.’ The outpouring of racism against First Nations Peoples in the lead-up to the referendum has continued, following its defeat. Aboriginal and Torres Strait Islander Social Justice Commissioner June Oscar AO told parliament “I have already heard reports of our children facing racism at school because of the outcome, that their peers have interpreted ‘no’ as a rejection of them.” The state of mental health across the whole country is a concern. Services such as 13Yarn have received higher volumes of calls as people struggle with the shock and grief of the loss.
This follows the bombardment of misinformation leading up to the referendum. Misinformation and disinformation driven by racism was prioritized on unregulated social media platforms, impacting the results of the referendum. The Australian electoral law system has been described as ‘incredibly fragile’ given there are no laws against spreading lies in political advertisements. This is something the Human Rights Law Centre are trying to combat, calling for laws to prevent the spread of incorrect information. Without regulation, in this current age, it seems unlikely any constitutional referendum would be able to succeed.
Despite the referendum defeat, there is still strong support for the establishment of an independent advisory body. One way to form this body would be through legislation. Though, if this were to occur, it would not hold the same protections, had it been enshrined in the Constitution. A legislated Voice would be susceptible to political fluctuation, as Australia has seen in the past when it comes to First Nations led legislative bodies. In any case, the Australian Prime Minister, Anthony Albanese, has confirmed the government will not seek to legislate a Voice. However, there is the possibility for an advisory body to exist outside of legislation. Dr Dani Linder likened this to the Assembly of First Nations and the Congress of Indigenous Peoples in Canada. The Assembly of First Nations was modelled on the United Nations General Assembly.
First Nations Peoples aligned with the ‘progressive no’ vote have continued to advocate for treaty and truth-telling, the second and third components called for within the Uluru Statement. Unlike other settler-colonial Commonwealth States, no treaty exists between the State and the First Nations Peoples of Australia. The lack of treaty in Australia illustrates an ongoing denial of First Nations Peoples sovereignty and contributes to the fallacy that the foundation of the settler-colonial State was legitimate. The lack of a respectful relationship along with equitable political autonomy has permitted First Nations rights to be breached and is the foundation of injustice and disadvantage today. There is a clear need for a treaty to set in motion acknowledgement of, and legal protection for, the rights and interests of First Nations Peoples.
The impact of the defeated referendum on truth-telling and treaty negotiations is yet to be fully realised, but the progression Australia was seeing prior to the referendum appears to be continuing, urged on by First Nations activists. This progression was happening at the State/Territory level, rather than the Federal level. Currently, the advancement in this area can be seen in several states:
- Victoria has established the First Peoples’ Assembly, is proceeding towards treaty negotiation between First Nations Peoples and the State, and is also undertaking truth-telling through the Yoorrook Justice Commission.
- South Australia passed legislation establishing a State-based Voice earlier this year and is moving to holding elections for Voice representatives in 2024.
- Tasmania has also said they are committed to a treaty and truth-telling process with First Nations Peoples.
- New South Wales is in the early stages of treaty-making, having committed to start a dialogue. However, following the referendum defeat, the NSW premier, Chris Minns, announced the treaty will not progress beyond consultations until after the next election in 2027. Some have taken this to mean that the process to treaty in NSW is being halted. NSW Aboriginal affairs minister, David Harris, said the premier was not referring to pausing progress on the path to treaty until the election, but rather suggesting any terms that could be in a potential treaty would be taken to the election.
- Queensland has also been on the way to truth-telling and treaty with First Nations Peoples, with the Path to Treaty Act being passed in March this year. However, whether this continues beyond the 2024 state election is uncertain. Following the referendum defeat, the Labor government has confirmed support for progress, but the LNP opposition has stated they will not continue.
Even if sub-national progress is to continue, there are, however, some potential risks involved in enacting sub-national treaties without a federal treaty. In entering into treaties with states/territories, First Nations Peoples have to recognise the legitimacy of the settler-colonial government system that dispossessed them, which might potentially compromise treaty at a national level. Concerns were raised in this same vein regarding a constitutionally enshrined Voice, questioning whether it meant First Nations Peoples were ceding sovereignty. These concerns were dispelled, which could also provide reassurance for any sub-national agreements. Additionally, because of Australia’s division of powers, there may be some areas that states/territories cannot enter into agreements on, because they fall within federal jurisdiction alone. Moreover, the federal government would have the power to override sub-national agreements. This speaks to the importance of simultaneously progressing with commitments to a national treaty, but, following the referendum, it looks as though this is likely to be delayed.
Following the referendum outcome, Australia must engage in an important period of serious reflection. Can the Australian community put aside the politics and misinformation, reflect on what has happened, think about how to meaningfully respond, and commit to advancing the rights of First Nations Peoples? Compared to non-Indigenous Australians, First Nations Peoples in Australia are more likely to experience physical violence, to be disabled or have a long-term health condition, to be imprisoned, to be unemployed, and to die earlier; making Australia’s path to Voice, Treaty and Truth a matter of life and death.
Bethany Butchers is a Ph.D candidate and an associate lecturer at the University of Newcastle School of Law and Justice in Newcastle, Australia. Their research focuses on reparations for intangible losses associated with land dispossession of First Nations Peoples, through the native title system.
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