Labor's Indigenous Voice To Parliament Will Permanently Divide Us

Originally Appeared In The Epoch Times Australia

Indigenous Australians are Australians

Voice. Treaty. Truth. These are the words used to describe the Australian Labor Party’s (ALP) main policy for Indigenous Australians. Now that the ALP has claimed power in Canberra after nine years in opposition, it is time to consider what these words mean genuinely.

The Labor party policy platform notes a constitutionally enshrined Voice to Parliament is a “matter of priority.” It also promised to establish a “Makaratta Commission to work with the Voice to Parliament on a national process for Treaty and Truth-telling.”

What Australians have been told about the proposed Voice to Parliament and what a Voice will do are likely two different things.

The suggestion that the Voice would merely be confined to issues affecting Indigenous Australians would mean it won’t be confined at all. All policy issues that have a general application are indigenous policy decisions because Indigenous Australians are Australians.

In effect, establishing a Voice entity would create a parallel system of representative government based on race. As a result, the legal and democratic status of Australians will be affected and determined by their ethnic background, making it one of the most radical proposals for constitutional change in Australian political history.

The Makaratta Commission is even more obscure than the Voice, but its potential divisiveness should not be understated. A commission for truth-telling can quickly become a forum for historical revisionism and partisan point-scoring.

Truth commissions also enable the obsession with the past when our governments have so much work to do securing the wellbeing of Australians in the present.

As the new senator representing the Northern Territory, Jacinta Nampijinpa Price, noted recently, “The Greens might want to look back with truth hearings, but there are things happening right now that are far more urgent like the safety of women and children in regional communities.”

Northern Territory political leader Jacinta Nampijinpa Price. (Supplied)
Northern Territory political leader Jacinta Nampijinpa Price. (Supplied)

It is undoubtedly true that many Indigenous Australians, particularly in remote communities, face a range of challenges from violence, unemployment, crime, and alcohol and drug abuse.

A multitude of centralised bureaucracies have been established to “manage” the problems, all with little success. The idea now to erect another bureaucracy to focus on the past and writing treaties will be no more successful than the rest.

Treaties might be of interest in academia but won’t be a cure to any of the real-world problems in Indigenous communities. Just consider how the existence of treaties in Canada and New Zealand have not generated better outcomes among their First Nations or Maori populations.

At its best, the issue of a treaty is just incoherent. Indigenous Australians are Australians, and the Australian government can’t sign a treaty with itself.

At its worst, the treaty is a divisive idea because it is predicated on the idea that Indigenous Australians are in some way legally separate from other Australians.

These are consequential proposals that deserve a genuine public debate on their potential benefits and dangers.

The challenge now is that a bipartisan campaign for constitutional change will potentially confront Australians.

The new opposition leader, Peter Dutton, has correctly in the past rejected a Constitutional Voice for being a “third chamber” of parliament.

But it is possible that Dutton, to shore up support from the Liberal’s depleted left faction, may now be back in the Voice.

Voice supporters scoff at the suggestion that their proposal would be a third chamber, but it is undeniable that the Voice would, in effect, exercise a veto over public debate. Furthermore, the risk of going against the official “voice” of indigenous Australians would be met by debilitating claims of racism.

Already the debate is being shaped around the idea that opposing the existence of the Voice is an inherently racist idea.

Labor Senator Malarndirri McCarthy called on Dutton to support the Voice to compensate for his failure to attend Kevin Rudd’s parliamentary apology to the stolen generation in 2008.

But allegations of racism aren’t going to cut it at a referendum on constitutional change. Australians are a discerning people when they are asked about changing the core institutions of democratic governance. That’s why Australians have almost always said no when Canberra asks the voters to give them more power.

It also explains why the nation overwhelmingly supported a constitutional change in the indigenous affairs referendum in 1967. The removal of references to race in the Constitution was consistent with a view that Australians’ formal and legal status should not be delineated along racial lines.

The movement for the Voice is not the continuation of 1967 but a repudiation of the claim for racial equality it represented.

Indigenous Voice Of Division Would Force Parliament’s Hand

Proponents of an indigenous voice to parliament make two key claims: it would be confined only to areas affecting Aboriginal and Torres Strait Islanders, and it would not become a third chamber of parliament. Both claims understate how far-reaching such a body is likely to become.

In an opinion piece in these pages on July 26 (“Cleanest way to establish a voice”), esteemed constitutional lawyer Anne Twomey refers to a draft constitutional amendment she prepared in 2015 to provide guidance on how a constitutionally enriched voice might work. The first part of Professor Twomey’s proposed amendment states that an Aboriginal and Torres Strait Islander body “shall have the function of providing advice to the parliament and the executive government on matters relating to Aboriginal and Torres Strait Islander peoples”.

But this seemingly unobjectionable limitation hides how far the remit of the voice would be. All major policy decisions made by parliament affect Aboriginal and Torres Strait Islander peoples, including tax, welfare, education, health, infrastructure, industrial relations, environmental regulation, financial market regulation, and superannuation. It couldn’t be any other way. Laws are passed by parliament on behalf of all Australian citizens regardless of their biological make-up.

Even assuming an Aboriginal and Torres Strait Islander body could represent the diversity among indigenous Australians is questionable. There is no more a single indigenous view on policy than there is a single non-indigenous view. But the proposal for a voice cuts against the model of Westminster parliamentary democracy, based on geographical rather than racial representation, that underpins the success of modern Australia.

Professor Twomey also flatly rejects the claim that an indigenous voice to parliament would act as a third chamber.

In a separate article on July 13 (“Fright-monsters keen to deny voice a fair go”) Professor Twomey states “the only people suggesting this (that the voice would become a third chamber) are those who are opposing it, so we can strike this off the list of problems”. Professor Twomey asserts that the proposed indigenous voice is not a radical concept as it would join numerous other bodies “whose job it is to ensure that the parliament is better informed about particular subject matters”.

Chris Kenny in his article from July 20 (“Uluru plan could not be fairer”) similarly claims that if critics must describe an indigenous voice as a chamber, “then it will not be a third chamber but perhaps the 598th chamber”. But the entire point of having an indigenous voice is that it must not be just another body among many others. That is why proponents insist on it being constitutionally enshrined — to elevate it above the other bodies and to prohibit its abolition by parliament.

If the voice is to be just another government body, then it doesn’t need any special representation.

The government could establish the voice right away, without the need for constitutional change. But if the voice is to be something more influential, then it will necessarily need to have a more privileged place within the policymaking, development, and implementation process.

This is why the voice would become a de facto third chamber (if not de jure — although even on this point we cannot be sure until a concrete proposal is established).

Parliament would be reluctant to go against the advice of the voice, not necessarily because of the quality of its advice, but out of fear of being shamed into action. In a time of identity politics, the image of a majority non-indigenous parliament going against the advice of an indigenous-only body would make it difficult for parliament to go against that advice.

Despite disagreement about the voice, there is broad agreement that the views of many indigenous Australians are not reaching the policymakers in Canberra.

This is not an argument for another Canberra-based bureaucracy, though, but its opposite. More localism achieved via the decentralisation of policy to local communities would empower those in remote areas to take control of their own lives in a way that Canberra never could.

Policymakers, commentators, and activists on both sides of the debate should come together to develop a positive and united policy program based on localism, regional economic development, and providing real property rights to indigenous Australians. This would deliver practical outcomes without compromising on the universality of the Constitution.

Regardless of the intentions of proponents, the voice would become an exercise in identity politics where every policy issue would be viewed through the prism of race. This would create an irreparable, permanent, structural, and racial divide in Australia from which this nation would never recover.

A Violation Of Racial Equality

This article originally appeared in Sydney Morning Herald.

All Australians are equal. The legal status of Australians should not be decided according to their skin colour or race. Any proposal that seeks to establish a special “voice to Parliament” for some people and not others is radical, illiberal, and a violation of all principles of racial equality. Our nation’s founding document should not divide us.

Australia has just commemorated National Reconciliation Week, a period in which Australians are asked “to reflect on our shared histories and relationship with Aboriginal and Torres Strait Islander peoples and explore how each of us can contribute to achieving reconciliation”.

This year, the focus turned to advocacy for a referendum to “recognise” Indigenous Australians in the constitution by establishing multiple representative bodies at a national, state and local level to advise Parliament on issues relevant to Indigenous Australians.

The establishment of such bodies, or an Indigenous voice to Parliament, is one of the most radical proposals for constitutional change in Australian political history. It risks establishing a parallel system of representative government based on race.

The suggestion that the voice could be confined to issues affecting Indigenous Australians is fundamentally incoherent. All policy decisions that have a general application are Indigenous policy decisions because Indigenous Australians are Australians.

Dangerously, the voice would in practice exercise a veto over any policy passed by the federal Parliament. While a formal veto would not be written into the powers of the voice body, the political risk would make it too costly for a government to go against the Indigenous voice. The accusation of racism, rather than the formal powers of the voice, is the veto.

In June 2017, the federal government’s Referendum Council delivered its Uluru Statement from the Heart, which called on the Australian people to follow the precedent set by a successful effort to change the constitution in 1967. In the statement it said “in 1967 we were counted. In 2017 we seek to be heard”.

Constitutional recognition advocates have always had a weak claim to be the spiritual successors of the 1967 referendum. In that year Australians voted by an overwhelming margin to “alter the Constitution so as to omit certain words relating to the People of the Aboriginal Race in any State and so that Aboriginals are to be counted in reckoning the Population”.

The symbolic importance of this vote should not be underestimated. While the practical effect was to centralise much of, and kick-start the massive growth of, the Indigenous affairs bureaucracy in Canberra, this was a positive step forward in removing references to race in our constitution.

Australian voters then began to understand that race had no place in the constitution.
It is true that many Indigenous Australians face a range of challenges from unemployment, high rates of incarceration, and drug and alcohol abuse. Addressing these challenges may well require local solutions. Many conservatives are in favour of broad-based political decentralisation and empowerment of local communities to solve local problems. But this doesn’t mean that the universality of the Australian constitution needs to be compromised. Nor does it mean that the concerns and needs of Indigenous Australians are fundamentally different to that of non-Indigenous Australians.

The basic needs of humans, Indigenous and non-Indigenous, are not culturally contingent. For example, all Australians need access to the dignity of work, effective policing to reduce crime and violence, home ownership and high-quality education to live flourishing lives. And the Australian Parliament, which represents all Australians regardless of race and is open to participation from all Australians, remains the best body to address these issues.

The idea of formal equality under the Crown is the cornerstone of the constitution and the principle underlying our freedoms and the rule of law. Challenging this idea is a challenge to national unity and Australia itself.

Regardless of how the country votes in a referendum for constitutional recognition or an Indigenous voice, Australia will lose. Merely asking Australians to divide themselves by race will divide Australia along racial lines forever. The dignity of Indigenous Australians demands that they be treated the same as non-Indigenous Australians, which means being included and represented in a common national body: the Australian Parliament.

This article originally appeared in Sydney Morning Herald.

Indigenous ‘Voice To Parliament’ Decision A Win For Liberal Democracy

This Article originally appeared in The Australian.

A recent decision of the Turnbull Coalition government has affirmed the bedrock principles of Australia as a proud liberal democracy.

The decision of the federal government to reject the proposal for a constitutionally enshrined “voice to parliament” for Aboriginal and Torres Strait Islanders was announced last week. The decision is a significant victory for the set of ideas upon which this country was founded.

The debate over the concept of the indigenous voice has been going on for some years.

A group of advocates, led by Noel Pearson, has pursued this idea as an alternative to the proposals for constitutional recognition that were put forward, first by the expert panel on constitutional recognition of indigenous Australians and then by the joint select committee on constitutional recognition of Aboriginal and Torres Strait Islanders.

But it was only after May 26 when the idea was adopted at the 2017 National Constitutional Convention, as part of the consultations conducted by the Referendum Council, that the proposal gained national prominence.

From that point the earlier proposals for constitutional recognitionwere essentially dead. The result of the discussion at the First Nations Convention was a document called “The Uluru Statement from the Heart”.

The Referendum Council delivered its final report to the Prime Minister and the Opposition Leader on June 30. The government’s official response is a clear enunciation of the principles that are the bedrock of liberal democracy. It is one of the most important documents published by this government because it ­affirms the values on which Australia was founded.

At the heart of the government’s reasoning is the idea that all Australians are equal: “Our democracy is built on the foundation of all Australian citizens having equal civic rights — all being able to vote for, stand for and serve in either of the two chambers of our national parliament”.

The government has based its decision in a democratic tradition that goes back at least to the time of Aristotle. It is a decision rooted in the idea that all citizens have an equal right to participate.

Conversely, the government’s decision not to proceed with the indigenous voice is a rejection of racial identity politics. It is a denunciation of ideologies that treat human beings not as individuals but as members of a group based on race, skin ­colour, or national or ethnic background.

The government is right to push back against such a dangerous and divisive ideology. The government also brought attention to the political reality — the voice to parliament was never going to succeed at a referendum.

It is famously difficult to achieve the requisite support for constitutional change in Australia. The double hurdle contained in section 128 of the Constitution — a majority of the national vote, and a majority in at least four out of six states — has been cleared just eight times in 44 attempts.

The suggestion by some ­commentators advocating for change that there is enough support to achieve this double ­majority is based on wishful thinking, not a rational assessment of the facts.

Back in August, Omnipoll conducted an online survey — the Australian Constitutional Values Survey — which generated 1526 responses. It found support for a voice to parliament at 61 per cent. The results were released this week following the government’s decision, attached to comments from a legal academic from UNSW making the brave claim that this online survey proved a referendum on the issue would be successful.

Many constitutional reform proposals that have started with much higher levels of initial support than the alleged 61 per cent in this case have gone on to lose.

The government was also right to raise another problem with the proposal: that “it would inevitably become seen as a third chamber of parliament”.

Proponents of change have argued that the new body would have no veto power over the parliament. But if the “voice” is advisory only, then there is no need for it to be constitutionally enshrined because the Constitution is a document that establishes and distributes power between branches of government.

The significance of the decision should not be understated. At its core the decision was about whether the political structures set out in our Constitution are built on a foundation of individual rights and responsibilities. Every Australian should rejoice that our government has affirmed these foundations.


This Article originally appeared in The Australian.

Saying What We’re All Thinking

This article originally appeared in The Australian Financial Review.

The cosy Canberra consensus on issues from terrorism to immigration erodes the public’s trust in politicians.

It took someone who’s been in the federal Parliament for just over a year to say what was obvious and what everyone was thinking, but which his colleagues, some of whom have been politicians for decades, were afraid to admit.

James Paterson, the Liberal senator for Victoria, said last week that following Indigenous representatives calling for “substantive” not merely “symbolic” constitutional changes, a referendum to symbolically acknowledge Indigenous Australians in the constitution would now probably never be held.

Indeed, in the words of Paterson, “the loose Canberra consensus” that some form of constitutional recognition was inevitable, turned out to be wrong. In truth, this reality had become apparent some time ago, but no politician wanted to puncture the convenient groupthink on the issue. Further, no one wanted to question why taxpayers were providing $30 million for a government-sponsored “Recognise” campaign, when clearly “recognition” had been over-taken by more far-reaching claims.

There’s a loose Canberra consensus on many issues. A feature of such a consensus is that the major political parties and the political class agree between themselves, while the public doesn’t get a look in. It’s not a consensus between the elected and those who elected them.

Often the things on which there’s a Canberra consensus are things politicians don’t want to talk about with the public.

Opinion polls show only 37 per cent of Australians trust politicians. The feeling is mutual. Politicians don’t trust Australians.

When trust between the ruled and the rulers breaks down, democracy corrodes.

The maintenance of trust between the politician and the public is essential if Australia is going to overcome the challenge of Islamist terrorism.

There’s no surer way for the community to lose trust in the government and in the authorities charged with fighting Islamist terrorism than for officials to treat appropriate and legitimate questions about things like the relationship between terrorism and our refugee program with contempt and disdain.

Which is exactly what ASIO director Duncan Lewis did when replying to a question from Pauline Hanson. He said: “I have absolutely no evidence to suggest there is a connection between refugees and terrorism.” One suspects if Lewis has been answering a question from someone other than Hanson, he would have given a different answer. The loose Canberra consensus on Islamist terrorism is that it’s best if politicians don’t talk about the issue with the public. In this newspaper on Wednesday it was reported that Tony Abbott’s comments about “Islamophobia” had “annoyed security officials, who believe such comments only make it harder to thwart domestic terrorist attacks”. The piece de resistance from the security agencies was the quote, Abbott “should know better”.

The implication being that Abbott “should know better” than to say what everyone was thinking.

In 2014 one of the reasons Abbott gave for reneging on his promise to repeal section 18c of the Racial Discrimination Act was that he’d received advice from the security agencies that if he did repeal the section, he’d upset the Muslim community.

Section 18c remains unchanged, and meanwhile the Islamic Council of Victoria is urging the creation of government-funded “safe spaces” where Muslim youth “could be radical”. To his credit, the Victorian Premier said yesterday: “There is no safe way to rail against the West” The Canberra consensus on immigration is in favour of a substantial immigration program. On the rare occasions when the consensus has been challenged, such as Julia Gillard did as PM in 2010, the Canberra consensus quickly prevailed.

Gillard declared she didn’t necessarily support a “big Australia”, and Tony Burke who under Kevin Rudd had been the “minister for population” had his title changed by Gillard to the ‘”minister for sustainable population”. Burke held this second title for just a few months.

The Canberra consensus on immigration has always been that politicians should only talk about its positives, not its potential negatives. Maintaining that consensus now risks damaging community support for this country’s immigration program.

When politicians are unwilling or unable to engage in an honest discussion with the public about immigration then the public’s trust in politicians is eroded even further.


This article originally appeared in The Australian Financial Review.

No Place For Race In Our Constitution

RACE has no place in the Australian constitution. Proposals to grant special legal rights to any group of Australians based on their race will be rejected. Australians are egalitarian. Fairness is a concept that runs deep in the Australian psyche.

This is why the two proposals contained in the Uluru Statement released last week — a treaty between indigenous and non-indigenous Australians and a new constitutional body to represent the interests of indigenous Australians — will not be accepted by the public. Both proposals would divide Australians by race. And Australians will not have a bar of that.

Indigenous Australians have made a significant contribution to the success of modern Australia.

The first British settlers of the 18th century, and the waves of migrants that have followed from all corners of the globe, have also helped to make Australia what it is today.

Australia’s story is a tale of diversity. Australians are right to be proud of the fact we are a successful, peaceful, prosperous country built on a respect for ethnic and religious plurality. But just as we recognise the contribution that has been made by individuals from so many ethnic backgrounds, we also recognise that race itself is an outdated concept.

We are all members of the human race. Civilised people know that differences between races are skin deep.

For that reason, race should never be used as a motivation for passing new laws, and it certainly shouldn’t be used to grant or to take away rights in our constitution.

The Australian constitution should be colour blind. It should treat every citizen equally, and it should not give the government the power to make laws that treat different groups differently because of their race.

This is why — if we are to make any changes to the constitution — we should ensure that any references to race are removed, not added.

Currently there are two sections of the constitution that refer to race. The first is section 25, which was designed to discourage state governments from banning people of any particular race from taking part in elections.

The second is section 51 (xxvi), which grants the Commonwealth the power to pass race-based laws.

If Australians are to be asked to change the constitution it is this change that should be supported — the deletion of the two provisions that make reference to race.

But anything that seeks to insert race back into the constitution is dangerous and divisive.

Leaving aside the principle that the constitution should be completely free of references to race are a series of practical problems.

The biggest of those problems is that indigenous Australians are individuals who don’t all necessarily think the same way about matters of public policy. The suggestion that Aborigines and Torres Strait Islanders can be represented by a single voice is condescending and paternalistic.

Every adult indigenous Australian has the vote and their ability to be heard at an election is the same as all other Australians. Treating indigenous Australians differently because of their race is wrong.

The proposal for a treaty makes even less sense. Treaties are legal agreements between two or more sovereign countries. But indigenous Australians are Australians. How can a country make a treaty with its own citizens? Some members of the indigenous community are open about the need for indigenous sovereignty to come before the negotiation of a treaty.

These members of the indigenous community do not accept the legitimacy of the constitution itself. This was why a group of delegates walked out of the Uluru summit last week, when a Victorian delegate said of her delegation: “We as sovereign First Nations people reject constitutional recognition. We do not recognise occupying power or their sovereignty, because it serves to disempower, and takes away our voice”.

This form of radical race politics sits at the heart of the constitutional change put forward in the Uluru Statement. It is a divisive ideology.

Our constitution is a rule book. It clearly sets out the way the Australian government should be organised. It is not an exciting document. But it treats all Australians equally.

Indigenous Treaty Would Divide Australia Into Two Nations According To Race

All Australians are equal. This principle is the basis of our freedoms and a cornerstone of the Australian constitution.

Our nation’s founding document should unify us – not divide us.

Any proposal that seeks to enshrine division between Australians on the basis of race should therefore be rejected. And it is why any suggestion of a treaty between Indigenous and non-Indigenous Australians should also be rejected.

Rarely has such a powerful defence of equality and the value of the individual been expressed as on a hot afternoon in Washington DC on 28 August 1963.

At 3pm that afternoon in front of the Lincoln Memorial, Martin Luther King jnr created history when he uttered the words: “I have a dream that my four little children will one day live in a nation where they will not be judged by the colour of their skin, but by the content of their character.”

These words are as real and as relevant in 2017 as they were 53 years ago.

It is this sentiment of equality that Australians should bear in mind when considering proposals to change the Australian constitution.

The most recent proposal for constitutional change is contained in the Uluru Statement, released last week.

The Uluru Statement is the culmination of three days of discussions amongst Indigenous leaders at Uluru last week. The meeting in Uluru follows six months of community consultations with Indigenous leaders held by the government-appointed Referendum Council.

The Uluru Statement is a response to the key issue these deliberations were established to address: whether Indigenous leaders support the proposal to “recognise” Aboriginal and Torres Strait Islanders in the Australian constitution, and if so what form the change should take.

The Statement calls for a treaty between Indigenous and non-Indigenous Australians, and also proposes the establishment of a new constitutional body to represent Indigenous Australians: “We call for the establishment of a First Nations Voice enshrined in the constitution.”

These are radical proposals that will divide Australians on the grounds of their racial identity. These proposals are the manifestation of radical identity politics.

Formally dividing Australians by law is a dangerous idea, doubly so when that division is done on the basis of race, skin colour, ethnicity or indigeneity.

The Commonwealth parliament represents all Australians. This is why an advisory body for Aboriginal and Torres Strait Islander Peoples enshrined in the constitution cannot be accepted.

A separate body, whether it is called an Aboriginal and Torres Strait Islander peoples advisory body, a new chamber of the Commonwealth parliament, an Indigenous parliament, or a First Nations Voice undermines the idea that all Australians are equal under our democratic system. All policy decisions are Indigenous policy decisions, because Indigenous Australians are Australians.

Treaty, which is sometimes referred to by the Yolgnu word for treaty, “Makarrata”, would divide Australia into separate nations. Aboriginal and Torres Strait Islander peoples are Australian. The idea that they are separate from Australia is dangerous, and a treaty between Indigenous and non-Indigenous would divide Australians according to race.

Australia is one of the oldest and most successful democracies because our constitution is based on the idea of the equality of all Australians.

If any constitutional changes are to be contemplated they should make the constitution truly colour-blind and remove all references to race in the document.

There are two current sections in the Australian constitution that refer to race – sections 25 and 51 (xxvi). Section 25 was intended to prevent state governments from restricting the right to vote according to a person’s race. Section 51(26) gives the Commonwealth government the power to pass race-based laws.

Section 25 is unnecessary because equal voting rights are already guaranteed under the constitution. Section 51(xxvi) is discriminatory and illiberal. Race-based laws are incompatible with the equality of all people.

Taking out these sections removes the Commonwealth government’s constitutional power to divide Australians.

If these two sections are removed, no new references to race, or skin colour, or ethnicity, or indigeneity should be added.

The Institute of Public Affairs believes there should be no references to race in the constitution. The constitution should not divide Australians according to race.

Australia’s success as a free and prosperous country is founded on the idea that all humans are of equal worth. Regardless of race or ethnic background, all Australians must be treated equally by the government and by the law.

In the constitution, all Australians should have the same rights and should share the same responsibilities.

Race has no place in the Australian constitution.


This article originally appeared in the IPA Review.

Bill Shorten’s push for a treaty with Aboriginal Australians is as divisive as it is dangerous, writes Morgan Begg and Simon Breheny.

Debate over the constitutional recognition of Aboriginal and Torres Strait Islanders has consumed Australia’s political class for almost a decade. Ever since former Prime Minister John Howard promised to recognise indigenous Australians in the constitution if the Coalition government won the 2007 election, every prime minister and opposition leader has committed to deal with the issue.

What would a treaty with Aboriginal and Torres Strait Islanders look like? And is there any merit in the proposal?

But after years of debate, the door was opened to a far more radical solution on 13 June, 2016 when opposition leader Bill Shorten indicated that a future Labor government could support a ‘treaty’ with Aboriginal and Torres Strait Islander peoples. This is not a new idea, but support for a treaty has fallen away in recent years, partly due to the attention placed on, and bipartisan support for, constitutional recognition.

Now Shorten’s intervention on this issue has given rise to a growing chorus of support for the concept of a treaty, and shifted focus away from constitutional recognition.

But what would a treaty with Aboriginal and Torres Strait Islanders look like? And is there any merit in the proposal?

The basic idea of a treaty is simple: It is an agreement between two or more sovereign nations. The legal technicalities are outlined in the Vienna Convention on the Law of Treaties, in which Article 2 states: ‘Treaty means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation…’

Howard delivered a typically succinct statement on the possibility of an indigenous treaty back in 2000 when he said: ‘A nation does not make a treaty with itself.’ Howard had previously expressed his reservations on the issue in 1998, stating: ‘I don’t like the idea of a treaty because it implies that we are two nations. We are not, we are one nation. We are all Australians before anything else, one indivisible nation.’ Howard’s thoughtful commentary highlighted the most significant issue facing those advocating a treaty – sovereignty.

A treaty is not a legally coherent concept when one of its parties is not a sovereign state. And what this reveals in the context of the proposed indigenous treaty is perhaps the most interesting aspect of this whole debate. The more fundamental question is not whether to have a treaty, or what the terms of such a treaty might be, but whether there is a claim to indigenous sovereignty and statehood. Recognition of sovereignty must necessarily precede a treaty.

This is a very significant point. And it is of course feasible to advance such a proposal, and to make arguments in favour of it. However, the claim to sovereignty is very rarely put forward in such explicit terms. What is more common in the debate around an indigenous treaty is for the discussion to skip over this necessary precondition altogether, or for the discussion to revolve around a legal document which appears to bear little resemblance to a properly-defined treaty.

A good example of this prevarication can be found in the definition of a treaty provided by Australians Together, a reconciliation organisation with the aim of ‘bringing Indigenous and non-Indigenous Australians together’.

Calls for a treaty in Australia refer to a formal agreement between the government and Indigenous people that would have legal outcomes. A treaty in Australia could recognise Indigenous people’s history and prior occupation of this land, as well as the injustices many have endured. It could also offer a platform for addressing those injustices and help to establish a path forward based upon mutual goals, rather than ones imposed upon Indigenous people.

Other organisations and individuals promoting an indigenous treaty adhere to similar definitions.

The significance of a proposal in favour of sovereignty is one that requires very careful consideration. Sovereignty raises a very long series of questions. With whom is the Australian government negotiating? Does sovereignty mean the annexation of a proportion of the Australian landmass? If so, where? What qualifies a person for citizenship of the new sovereign entity? What will be the governance structure of the new sovereign entity? The lack of attention given to these questions is concerning given the issue’s complexity.

The description of treaty by Australians Together raises a second practical problem-content. The possible list of inclusions in a treaty is nearly limitless, and might include a separate indigenous parliament, additional rights to land, a significant expansion of social programs provided by government, new race-based anti-discrimination provisions or recognition of indigenous culture and language.

But none of these policies appear to require sovereignty, or ‘treaty’. With the possible exception of an indigenous parliament (depending on the structure and powers of such an entity), each policy prescription is a political claim within the normal parameters of public policy and, as such, ought to be debated and decided upon through the usual political process.

Putting that objection to one side, the practical effect of some of these policies would be a significant increase in the level of government involvement in the lives of indigenous Australians. Given the many problems associated with government policies directed at assisting Aboriginal and Torres Strait Islanders over recent decades, it is unclear how an expansion of these programs would lift indigenous Australians out of poverty, or increase health or education outcomes.

Treaties in other countries are frequently cited as examples that Australia could follow. However, it can be seen that the relevance and success of these treaties in countries such as New Zealand and Canada are vastly overstated, and that the living standards of their indigenous populations still significantly lag behind the rest of the population, despite the existence of a treaty or treaties.
New Zealand’s Treaty of Waitangi, so often put forward as an example that Australia should follow, was formed under very distinct and particular circumstances.

Signed in 1840, the Treaty of Waitangi was signed by representatives of the British Crown and several MÄori chiefs of the northern island of New Zealand. It was intended as a practical means of ending conflict between MÄori tribes and settlers, but also conflict between different Maori groups, in what was known as the Musket Wars. As western weaponry began to be circulated among the natives by European traders, the battles between the tribes became devastating, resulting in the deaths of tens of thousands of MÄori’s between 1807 and 1845.

Many MÄori chiefs signed the Treaty of Waitangi in order to secure peace (imposed by the newly sovereign British Crown). As a peace treaty between native tribes and a not-yet sovereign colonial force, the Treaty of Waitangi is of little relevance to Australia today.

While the imposition of peace was certainly beneficial for the MÄori people, the Treaty of Waitangi has not delivered improved living standards, as sought by advocates of an Australian treaty. According to the International Work Group for Indigenous Affairs, ‘MÄori life expectancy is still 7.3 years less than non-MÄori; household income is 78 per cent of the national average; 45 per cent of MÄori leave upper secondary school with no qualifications and over 50 per cent of the prison population is MÄori’.

The situation is not much different in Canada. In the 18th century, British America entered into a series of peace and friendship treaties with Indigenous groups to secure the neutrality or the alliance of those groups in Britain’s ongoing conflict with the French. Later treaties between the Canadian government and indigenous groups entered into post-confederation to allow for settlement and gave the Dominion large tracts of land in return for certain promises, such as the provision of food aid and education. Ever increasing sums of money spent tackling Canadian Aboriginal disadvantage – whether tied to treaty obligations or not – have outpaced the growth of the Canadian welfare state in general, and as the Fraser Institute notes, has resulted in little improvement in Aboriginal living standards or advancement.

Rather than continuing to divide Australians according to race or skin colour or ancestry, Australian governments must adhere, in all policy areas, to the liberal democratic principle that all citizens are equal.

At the heart of the push for a treaty is a deeply negative perspective on Australia, and the place of Aboriginal and Torres Strait Islanders within it. As University of New South Wales law professor George Williams wrote in 2014: ‘A treaty … could recognise the history and prior occupation of Aboriginal peoples of this continent, as well as their long-standing grievances. It could also be a means of negotiating redress for those grievances’.

While no one can doubt that certain discriminatory policies of past governments have negatively impacted indigenous Australians, the solution to the contemporary problems faced by Aboriginal and Torres Strait Islanders cannot be the perpetuation of the attitudes that have led us to the position in which we find ourselves today. Past injustices have been caused by a belief that indigenous Australians should be treated differently from other Australians. This is both unacceptable in moral terms, and catastrophic in practical outcomes.

Rather than continuing to divide Australians according to race or skin colour or ancestry, Australian governments must adhere, in all policy areas, to the liberal democratic principle that all citizens are equal.

A treaty fails the test of equality. It would be divisive, dangerous and a prolongation of the mistakes of the past.

This article originally appeared in the IPA Review.

A Treaty With First Australians Is Divisive And Dangerous

This article orginally appeared in The Australian.

The concept of a treaty with Aboriginal and Torres Strait Islander peoples is illogical and divisive. The current push for such a document is misguided, and should be abandoned.

It’s difficult to think of another policy idea that has taken hold with so many people with so little thought.

Bill Shorten backed the idea on national television. University academics have endorsed a treaty. Newspapers have editorialised welcoming the concept. The striking thing about the discussion is that there’s so much of it but so little actual engagement with what it means that it has failed to grasp the fact that the most basic requirements for a treaty simply do not exist.

This is symbolism over substance at its absolute worst. Promising better prospects for some of Australia’s least well off without having any evidence that this proposal could achieve such a future is wicked. But the idea of a treaty does not just hold out false hope. It is also a highly divisive and dangerous idea.

You do not have to be an expert on the Vienna Convention on the Law of Treaties to understand that a government entering into a treaty with a group of its own citizens is legally nonsensical. Treaties are legal documents entered into by two or more sovereign states.

Individuals or groups of individuals simply do not have capacity to enter into this form of legal arrangement. Capacity is a legal term that many will be familiar with in the context of contract law. It is the legal concept which dictates that children are unable to sign a valid contract.

But capacity also has application in the area of treaty law because only sovereign states can enter into treaties. An individual may sign a treaty but only on behalf of a sovereign entity.

In the context of a potential treaty with Aboriginal and Torres Strait Islanders, there is no second sovereign state. We are all Australians – indigenous and non-indigenous.

The only way the concept of a treaty makes any sense is if it is coupled with secession. Although this part of the equation is not often talked about it was hinted at by an audience member when the Opposition Leader was on ABC’s Q&A before the election.

An Aboriginal sovereign state is not an idea that will gain much traction in Australia. Part of the reason for this is that Australians recognise that many of the problems faced by Aboriginal and Torres Strait Islanders have been caused by treating Australia’s indigenous population as separate from the rest of us. Rather than addressing Aboriginals as individuals, many policies have lumped them together and tried to apply one-size-fits-all solutions. No idea is more offensive to our egalitarian instincts than dividing Australia according to race or ethnicity.

Even setting aside the sovereignty question for the sake of the argument gets us no closer to resolving all the problems associated with this ill-considered proposal. Who speaks on behalf of Aboriginal people? Even if such a person or a group of people could be identified it is still unclear whether a single treaty covering all indigenous Australians would be sufficient.

Before European settlement in Australia there were a large number of Aboriginal nations – perhaps as many as 700 – that occupied the land mass now known as Australia. A not unreasonable question is whether separate treaties are required for each nation still in existence today.

These are the initial hurdles proponents must clear before we get to the central question at issue with any treaty: what goes in it?

Much of the discussion about the content of a potential treaty has involved a ramping up of existing indigenous policy areas – land rights, self-determination, and language and cultural issues. Apart from lacking any creativity, this approach fails to recognise that past policies have not achieved the outcomes they set out to.

Moreover, every policy area proposed as content to any treaty will be debated just as passionately as indigenous policies are debated today. A treaty doesn’t circumvent the democratic process.

Advocates for a treaty are attempting to solve a complex conceptual problem with an even more complex conceptual mechanism. It’s a recipe for failure.

As demonstrated here, a treaty makes no conceptual sense. The very idea is legally unsound. But there is an even more fundamental reason for abandoning the pursuit of a treaty: it seeks to divide Australia.

Both a treaty and constitutional recognition of Aboriginal and Torres Strait Islanders will be rejected for the same reason: they would entrench division, rather than seeking to unify us. Policies that separate one group of Australians from another are not ideas that represent the country that Australia is and should continue to aspire to be.

This article orginally appeared in The Australian.