Civic equality means justice for all, regardless of ethnicity and that is where Victoria’s Treaty bill fails

The 2023 Voice referendum failed because it was about entrenching inequality. Picture: Rhylea Millar

When Australians are given a chance to have a say, history shows this country’s commitment to equality of citizenship is overwhelming.

But history also provides a warning that governments too easily forget. When equality of citizenship is threatened, the response in this country can be visceral.

Here’s the proof. In 1967, more than 90 per cent of voters supported a referendum that removed words from the Constitution that discriminated against Aboriginal people. In 2017, more than 60 per cent of those who voted in the same-sex marriage plebiscite supported the idea that civil marriage should be available to all couples regardless of sexual orientation.

The issues were different but those proposals succeeded because they invoked exactly the same principles: equal treatment under the law and equality of citizenship.

Now consider the fate of 2023’s Voice referendum which was all about the opposite – entrenching inequality. And that is why it failed.

Author, priest and academic Frank Brennan.

In his book on the failure of the Voice, Frank Brennan wrote that on one reading, the 60 per cent “no” vote was a decision to once again treat everyone the same by declining to establish a new constitutional entity available to only one group of citizens.

The lesson should be clear. In this country, reform that gives priority to equality of citizenship over questions of race is likely to be embraced.

Proposals that disregard equality and entrench racial preference are more likely to be viewed as illegitimate – or in Bob Hawke’s words, an attempt to impose a hierarchy of descent.

Which brings us to Victoria’s Statewide Treaty Bill and its plan to give an Indigenous organisation, to be called Gellung Warl, influence over the direction of public administration.

Some might see this as a way of making amends for the injustice of the past. But any injustice during colonial times was based on the same ideology that is apparent in the Treaty Bill: racial preference.

Either we now believe in civic equality regardless of race. Or we do not. There is no middle ground.

So where did this the idea of civic equality come from?

Henry Reynolds wrote about it in his 1987 book on Aboriginal land rights, “The Law of the Land”.

“Underpinning the writing and agitation of the antislavery and pro-Aboriginal activists was their belief in the radical equality of all people regardless of race, culture or creed,” he wrote.

“They took their ideas from several different sources. The one most often used was the Bible and its message that all people were the children of God … Reformers, missionaries and protectors returned constantly to this belief as the fountainhead of their often unpopular views and actions,” Reynolds wrote.

One of those unpopular early reformers was John Plunkett, a man who has been described by NSW Chief Justice Andrew Bell as one of the greatest barristers that state has ever known.

In 1838, Plunkett defied community sentiment by prosecuting the white stockmen who were responsible for the Myall Creek massacre of up to 30 Aboriginal men, women and children who were murdered, dismembered and burnt.

Plunkett insisted that the law should apply to all – even if this meant hanging white men for killing Aborigines.

In his new book, “Australia – A History”, Tony Abbott graciously acknowledges that The Sydney Morning Herald has apologised in more recent years for leading the push to drop the prosecution of the Myall Creek murderers.

But he writes that the principle of equality, inherited from Britain, still prevailed. It was not the end of race-based injustice in colonial Australia. But civic equality was the building block for the future.

That is the real lesson from the massacre at Myall Creek. It took a strong lawyer like Plunkett to stand up for civic equality when all around him were baying for racial preference. The real tragedy would be for Victoria to revert to such a system in the misguided belief that, 187 years after the massacre, racial preference has somehow become a legitimate basis for a democratic society.

This country’s own history says otherwise.

Will Albo play by the rules?

On Monday, when Anthony Albanese is due to meet Donald Trump at the White House, there will be plenty of interest in treaties.

Most Australians will want to know what the President of the United States has to say about his commitment to selling us nuclear-powered submarines under the AUKUS treaty.

But if the Americans have been doing their homework, they might be interested to learn what Albanese has to say about the treaty that has failed for more than a decade to protect US investments in this country.

The Americans have repeatedly made representations to this country about the 2014 expropriation by NSW of US-owned assets in mining company NuCoal Resources.

The problem for Albanese is that under the US-Australia Free Trade Agreement, US-owned assets can only be expropriated after due process of law and payment of compensation which is prompt, adequate and effective.

None of that happened when the Coalition government of NSW, led by then premier Barry O’Farrell, seized NuCoal’s main asset – an exploration licence which was 30 per cent owned by US investors.

So before Trump does a deal with Albanese over access to this country’s deposits of critical minerals, he might need to clear up whether Albanese intends to abide by the terms of the free-trade treaty.

He might also need some answers about what Albanese would do if another state government decided to simply take American assets without compensation.

Chis Merritt is vice-president of the Rule of Law Institute of Australia.