Radical idea about ‘occupied Australia’ must be confronted

An extraordinary open letter lays to rest any doubts that the referendum deserved to fail, and confirms the legitimate concerns of many about the real agenda underlying the voice.

ACT Chief Justice Lucy McCallum uses her courtroom to channel Lidia Thorpe by acknowledging that sovereignty has never been ceded. Picture: Albert McKnight

The beauty of my favourite quote by German playwright Bertolt Brecht is partly the certainty that I will get to reuse it once every few years. The other part is the pointed words from Brecht’s famous play Die Losung – The Solution – about the East German uprising of 1953:

After the uprising of the 17th June

The Secretary of the Writers Union

Had leaflets distributed in the Stalinallee

Stating that the people

Had forfeited the confidence of the government

And could win it back only

By redoubled efforts. Would it not be easier

In that case for the government

To dissolve the people

And elect another?

With the predictability of the most reliable Swiss watch, law professor George Williams wrote on Monday: “Australia’s system of constitutional reform is broken and there is little point in heading back to the polls until this is fixed.” Fellow voice advocate and constitutional academic Anne Twomey echoed a similar lament. Their evidence for this proposition appears to be that referendum proposals they favour, such as the voice to parliament, keep failing. Those damn people keep letting them down.

For Williams, Twomey and many lawyers, democracy is a terrible disappointment and would benefit from a little supervision from some expert group – preferably consisting of suitably educated and right-minded lawyers. This explains why so many lawyers want a bill of rights so that when elected politicians fail to act on proposals smart lawyers really like, or enact the wrong ideas, a judicial elite can correct them. In the case of constitutional reform, Williams suggests a “small, nonpartisan constitutional commission” to recommend suitable changes to the Constitution.

Perhaps something akin to the so-called Constitutional Expert Group that included Williams, Twomey, law professor Megan Davis and a few like-minded friends, and that did such a marvellous job giving advice on the voice referendum?

Megan Davis. Picture: Arsineh Houspian.

It obviously does not occur to Williams, Twomey and those bewailing the referendum result that the real reason it failed so ignominiously was that it deserved to do so. Its failure had nothing to do with the country refusing to recognise Indigenous people in the Constitution – a simple recognition proposal, without the absurdly radical voice addition, would have attracted bipartisan support and no doubt won in a canter.

Its failure had much more to do with the extremist nature of the proposal and the manner in which activists demanded the country toe their line.

Demands that the electorate agree to a brand-new body, chosen by race (or indigeneity if you must), with its own chapter in the Constitution and untested power and reach, on pain of being called racist or stupid, was no way to win people over.

Neither did the referendum have anything to say about reconciliation. A series of non-negotiable demands for a major power shift in our polity has nothing to do with reconciliation. Neither was the emotional soft-soap advertising or the hectoring from corporate Australia, a collected assortment of sports stars and celebrities, church leaders and charities likely to win any friends.

Indeed, for the future one simple indicator of likely failure of a referendum proposal is if Williams, Malcolm Turnbull and the legal profession are in favour of it.

It is galling for Yes advocates to now cry crocodile tears about the lack of bipartisanship when, as Greg Craven pointed out in this paper on Tuesday, “bipartisanship was negated from the very start by Albanese. He did not want it … this was to be a Labor triumph.” That explains why the minority recommendations of the trumped-up parliamentary committee belatedly called to examine the proposal were so comprehensively ignored. If Williams really wants a proposal to ensure more referendums succeed in future, perhaps he should advocate that the legislation authorising a referendum requires a 75 per cent majority of each house of parliament. That will ensure bipartisanship.

The voice question was the 37th referendum to fail out of 45 held since Federation. Altering the Constitution should be difficult. It is a founding document, not a faddish mission statement. Wisely, for example, Australians did not succumb to sentiments of the 1950s; they voted down Robert Menzies’ proposed constitutional amendment empowering parliament to ban the Communist Party.

Any doubt that the voice referendum deserved to fail was put to bed for most Australians by the extraordinary open letter published last Sunday. An anonymous group described its letter as the “collective insights and views of a group of Aboriginal and Torres Strait Islander leaders, community members and organisations who supported Yes”.

Even if one makes allowances for the obvious anger and resentment fuelling the statement, and even if one recognises that this letter may be anonymous precisely because it may not represent all the Indigenous leadership, it confirms the legitimate concerns of many about the real agenda underlying the voice.

It says, “Australia is our country … We do not for one moment accept that this country is not ours. Always was. Always will be. It is the legitimacy of the non-Indigenous occupation in this country that requires recognition, not the other way around. Our sovereignty has never been ceded.”

Telling non-Indigenous Australians that Australia is an illegitimate occupied state reflects that the sentiments underlying the 26 pages of attachments to the Uluru statement are as much a part of the activists’ agenda as the one-page summary of the statement.

It should surprise no one that when Australians started to realise how central these views were to the self-described Indigenous leadership, they also started to re-evaluate the Uluru statement and accompanying features such as the welcome to country. Is the welcome to country not just a benign, rather beige, ceremony but rather a pointed reminder to non-Indigenous Australians this is not their country? When the ABC tells us its broadcasts come from Gadigal land rather than Pyrmont, or when Qantas welcomes us to Naarm instead of Melbourne, is this because we are illegitimate occupiers of someone else’s land?

It is tempting to laugh these concerns off as the lunatic fringe of the Indigenous sovereignty movement. However, that is not an option in the face of the bald, unambiguous statements of the self-described but anonymous leadership. They have made clear what was already received wisdom inside certain of our law schools but had gone unnoticed.

As I have previously written, the belief inside legal academe that Australia is illegitimate and that the voice would go some way to sharing sovereignty pending a full treaty was hiding in plain sight. Until I read Treaty by Williams and Harry Hobbs, and the academic paper Voice versus Rights: The First Nations Voice and the Australian Constitutional Legitimacy Crisis by Gabrielle Appleby, Ron Levy and Helen Whalan, I had no idea this school of thought was behind the Uluru statement and the push for a voice. The referendum, and especially its aftermath, has exposed all this to the world.

It has never been clearer that Indigenous policy in this country needs a fundamental rethink, starting with the need for agreement on some basic questions. Questions most of us had already considered well settled. Are we one nation or two? Do we have one sovereign power, one system of laws and one system of government or do we have two of each of these? Or indeed (in view of the fact there are numerous First Nations) do we have more than two of each of these things?

The referendum process has indeed been bitter and divisive. Some may think it would be better had it never been proposed. But the Albanese government has performed an important public service. The referendum allowed us better to see inside the dark and divisive soul of key parts of the Indigenous activist movement.

It has forced us to realise that the separatist and sovereignty movement was much more than the mere eccentric musings of some radical academics with too much time on their hands. At least in some influential parts of Indigenous Australia, it is a mainstream movement.

It forces us to look closely, too, at how this divisive political activism is egged on at the highest levels by judges such as ACT Chief Justice Lucy McCallum, who uses her courtroom to channel Lidia Thorpe by acknowledging that sovereignty has never been ceded. Is McCallum providing fodder for activists to compile some kind of legal brief, where they can point to some judges who use their pulpit to advance Indigenous sovereignty?

There is fast approaching a time when this movement and its ideas need to be confronted head-on and reminded that Australia belongs to every citizen, regardless of race and time of arrival. By wedding itself to the Uluru statement, and the associated demands of what we know now to be a radical Indigenous movement, the Albanese government can expect a voter backlash. In the meantime, we should be very grateful indeed that the Constitution cannot easily be altered.