At the heart of the Liberal Party’s opposition to the Indigenous Voice is the notion that it divides Australia rather than uniting it because it gives Aboriginal people rights or privileges that others do not enjoy.
In the words of Opposition Leader Peter Dutton to parliament this week (borrowing some from Martin Luther King): “The great progress of the 20th century’s civil rights movement was the push to eradicate difference – to judge each other on the content of our character, not the colour of our skin.”
The Voice, he says, “will permanently divide us by race” and “re-racialise” the Constitution. In Dutton’s argument, the 1967 referendum, which removed a number of racist provisions, had been a “great step towards equality” which the “Orwellian” Voice proposal undermined. All this was “sadly a symptom of the madness of identity politics which has infected the 21st century”.
Superficially it’s a powerful argument, and it’s turning up increasingly in comment threads and pub talk as support for the Voice wavers. But it ignores decades of precedents in Australian and international law, including in the Constitution itself, where courts have recognised the need for, and justice of, special provisions for Indigenous Australians.
The 1967 referendum is much quoted by both sides in this debate: former prime minister Scott Morrison said in his speech on Wednesday that it had altered the Constitution 56 years ago “to give Indigenous Australians the same rights as all other Australians”.
Morrison is precisely wrong.
The original 1901 Constitution did not give the parliament any power to make special laws for Indigenous people. The clause read that parliament had power to make “laws for the peace, order and good government of the Commonwealth with respect to the people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws”.
The purpose was so the Commonwealth could pass special laws discriminating against Kanakas, Chinese, Indians and Malays who had come to Australia as indentured labourers. Aboriginal affairs would be left to the states.
The 1901 Constitution also prevented Aboriginal people from being counted so they were not taken into consideration when apportioning parliamentary seats or federal funding.
The 1967 amendments removed both prohibitions. The new wording allowed the Commonwealth for the first time to legislate for “the people of any race for whom it is deemed necessary to make special laws”.
This has always been interpreted as allowing “special” laws to be made for Aboriginal and Torres Strait Islander people because of their unique position in Australia, and to redress disadvantage particular to them. Liberal prime minister Harold Holt said so at the time, telling parliament the Commonwealth needed “power to make special laws for the people of the Aboriginal race where that is in their best interests”.
It’s hard to argue, as Dutton does, that the Voice proposal is a result of contemporary identity politics when special measures were being commended by a Liberal prime minister in the 1960s.
As for “re-racialising” the Constitution: race is already there.Incidentally, it’s puzzling that Dutton and Morrison are worried about inserting race when both have expressed support for Constitutional recognition for Aboriginal and Torres Strait Islanders and the enactment of special laws under the so-called “race power” to create local and regional Indigenous Voices.
Australia’s Racial Discrimination Act of 1975, does, as Morrison said, “equalise” the treatment of the races. But it also has provision for “special measures” because ending discrimination may not be enough to achieve equality of outcomes.
The Land Rights Act of 1976. The Native Title Act of 1993. Even the Howard government’s Northern Territory intervention of 2007 (controversially) included special measures for Aboriginal people alone based on their unique circumstances.
Special measures are supposed to be temporary until equality is achieved, and nobody would suggest we are there yet. But the idea of recognition, which both parties support, also acknowledges something more permanent – the fact that Indigenous people are different: they are the country’s First Nations people. The Native Title Act and laws protecting sacred sites, for example, provide permanent legal backing for the importance – and difference – of Aboriginal history and culture.
Does Dutton suggest that these, too, are divisive and unequal?
Dutton’s other key argument is just as unconvincing: that the Voice would clog up governance with unreasonable demands.
Imagine, he suggested, that the Commonwealth planned to expand a Defence base onto land with “a strong Indigenous connection” or to amend the national history curriculum. The Voice, he warned, would want to “make a representation” on these issues. This is not a terrifying prospect. It is precisely the purpose of the Voice : to add an Indigenous perspective to matters that affect them.
The argument that it’s wrong to treat First Nations people differently has been around for decades. It got Pauline Hanson kicked out of the Liberal Party in 1996, when she wrote a letter to a newspaper saying: “[N]ot that many years ago the Aborigines were treated wrongly but in trying to correct this they have gone too far … Until government wake up to themselves and start looking at equality not colour then [sic] we might start to work together as one.”
With his arguments that the Voice would “undermine our equality” and is “an overcorrection”, Dutton closely echoes her sentiments.
The Voice might not be the solution to all problems. And voters seem genuinely concerned they do not know enough about it. But as yet, its opponents have not mounted a convincing case against it.
Michael Bachelard an senior writer who authored the 1998 book .
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