One of the leading intellectuals who, we hope will continue his fine work in deconstructing and critiquing the central claims behind the Aboriginal voice referendum is Keith Windschuttle, who has already written a book on the real agenda here, namely the breakup of Australia, detailed in his book, The Break-up of Australia (Quadrant books, 2016). His July Quadrant article, addresses in condensed, but highly readable form, the main ideological myths standing as a foundation for the referendum drive. In a nutshell the aim is for what are now called “first nations,” to become real nations by treaties. But, the Aboriginal groups in history were never nations, but tribes that often went to war against one and other. There was never the unity of common purpose that the idea of a nation depicts. Yet, the lobby presses ahead with this agenda, which can be perceived as one more aspect of the cultural wars. As I see it, the intellectual battles can be won, but what needs to be overcome is the massive guilt trip that the media will roll out, making anyone going for a “NO” vote, a racist. I hope people can get beyond that old worn-out slur, and think about the real issues, detailed by Windschuttle in his important works.
““Treaties “to achieve self-determination, autonomy and self-government”
In 2017, the Uluru Statement from the Heart defined the Voice as a proposal to change the Australian Constitution to give individual Aboriginal communities complete autonomy to advise the Australian government and parliament what they want. The government would not be compelled to accept these recommendations — the Parliament would retain its existing executive and legislative status — but the Referendum Council’s response to the Uluru Statement asserted there were some non-negotiable conditions if the Parliament was to properly respect the wishes of this new Constitutional authority. The Council said:
Any Voice to Parliament should be designed so that it could support and promote a treaty-making process. Any body must have authority from, be representative of, and have legitimacy in Aboriginal and Torres Strait Islander communities across Australia. It must represent communities in remote, rural and urban areas, and not be comprised of handpicked leaders. The body must be structured in a way that respects culture. Any body must also be supported by a sufficient and guaranteed budget, with access to its own independent secretariat, experts and lawyers. It was also suggested that the body could represent Aboriginal and Torres Strait Islander Peoples internationally. A number of Dialogues said the body’s representation could be drawn from an Assembly of First Nations, which could be established through a series of treaties among nations.
In other words, the eventual goal of the Voice would be to make treaties between the Commonwealth and what it calls the First Nations. Its proponents don’t just want to keep their adopted title as “nations”, they want to become real nations. The Council’s report notes that the demand for treaties was a priority of the indigenous conventions leading up to the Uluru Statement of May 2017:
The pursuit of treaty and treaties was strongly supported across the Dialogues. Treaty was seen as a pathway to recognition of sovereignty and for achieving future meaningful reform for Aboriginal and Torres Strait Islander Peoples. Treaty would be the vehicle to achieve self-determination, autonomy and self-government.
So, the actual objective of the Voice is that each individual clan or language group should be recognised as a First Nation and for the Commonwealth to make a treaty with each one, as if it were a separate state. As I record in The Break-up of Australia (Quadrant Books, 2016), Aboriginal activists now want statehood, self-government and an independent legal system for each self-identifying Aboriginal clan that gains native title. And they want the Australian taxpayer to fund it all.
This is obviously a program for a radical revision of the Australian federation — all of it in the interests of Aboriginal people, but with no thought about how it could possibly be in the interests of the rest of us.
Let me remind readers of the version of Australian history they will all be required to accept. The Uluru Statement — or at least its original long version, not the one-page abbreviated and sanitised version published on that website today — made a series of assertions advocating the following:
We have coexisted as First Nations on this land for at least 60,000 years. Our sovereignty pre-existed the Australian state and has survived it. We have never, ever ceded our sovereignty. The unfinished business of Australia’s nationhood includes recognising the ancient jurisdictions of First Nations law. The Law was violated by the coming of the British to Australia. This truth needs to be told.
Australia was not a settlement and it was not a discovery. It was an invasion. Invasion was met with resistance. This is the time of the Frontier Wars, when massacres, disease and poison decimated First Nations, even as they fought a guerrilla war of resistance. Everywhere across Australia, great warriors like Pemulwuy and Jandamarra led resistance against the British. First Nations refused to acquiesce to dispossession and fought for their sovereign rights and their land.
Now it is not hard to show that this declaration is a caricature of Australian history. It falsely portrays people of Aboriginal and British descent as long-standing enemies, and it misrepresents British, Australian and international law, as the following points demonstrate.
“Aboriginal people are the First Nations”
The term “First Nations” derives from twentieth-century American politics and has been transported to Australia, where it does not fit. Aboriginal clans, hordes and tribes, which in most cases were no more than extended families, never attained any status resembling nationhood either before 1788 or any time after. There were no First Nations on this land for 60,000 years, as the Uluru Statement asserts. This was confirmed in 1836 in the seminal judgment of William Burton of the New South Wales Supreme Court and has been repeated several times since by Australian judges, including the High Court’s Harry Gibbs, who said in 1979:
it is not possible to say … that the aboriginal people of Australia are organised as a “distinct political society separated from others”, or that they have been uniformly treated as a state … They have no legislative, executive or judicial organs by which sovereignty might be exercised. If such organs existed, they would have no powers, except such as the law of the Commonwealth, or of a State or Territory, might confer upon them. The contention that there is in Australia an aboriginal nation exercising sovereignty, even of a limited kind, is quite impossible in law to maintain.
“We have never, ever ceded our sovereignty”
Before the colonisation of Australia, Aboriginal people never had any sovereignty to surrender. “Sovereignty” is a term from international law, or what was called in the eighteenth century “the law of nations”. The two leading European authorities on international law at that time, Christian Wolff and Emmerich de Vattel, both argued that for a society to be a genuine nation it must have civil sovereignty over a territory and its people and, as a corollary, only nations could have genuine sovereignty.
Justice Burton’s 1836 judgment found the Aborigines did not have anything that amounted to what the British and other nations could regard as statehood or nationhood. He said they
had not attained at the first settlement to such a position in point of numbers and civilisation, and to such a form of government and laws, as to be entitled to be recognised as so many sovereign states governed by laws of their own.
It is worth noting here that, although Justice Burton’s views would be dismissed by today’s activists as an expression of white privilege, or some similar racist insult, he was an evangelical Christian who took seriously the status of Aboriginal people as subjects of the British Crown. His personal letters reveal he was long concerned about relations between Aborigines and white settlers on the colonial frontier. He pushed for the NSW authorities to investigate publicised claims of ill treatment and violence to Aboriginal people, especially alleged massacres. A number of these turned out to be groundless exaggerations but one of the worst of them was true. In 1838 eleven convict and ex-convict stockmen were accused of the Myall Creek Massacre of 28 Aboriginal people near Moree in 1838. The stockmen were initially tried for the murder of one of the Aborigines but were acquitted by a jury. However, Burton moved for a second trial to be held on broader grounds. Under his jurisdiction the second jury found that seven of the eleven stockmen were guilty as charged. Burton sentenced all seven to death and they were hanged soon after.
“Sovereignty is a spiritual notion” derived from land ownership
The short version of the Uluru Statement still emphasizes this claim, but tries to cover up its implications by redefining the concept of sovereignty and tying its meaning to the one fact that is in the Aborigines favour, that they were the first to own the land on the Australian continent. The claim says in full:
Sovereignty is a spiritual notion: the ancestral tie between the land, or ‘mother nature’, and the Aboriginal and Torres Strait Islander peoples who were born therefrom … This link is the basis of the ownership of the soil, or better, of sovereignty. It has never been ceded or extinguished, and co-exists with the sovereignty of the Crown.
There are three things wrong with this statement. First, sovereignty has never been a spiritual notion. It is not a sacred tradition but a recent invention. It is a European term, unknown to Aboriginal culture before 1788, and not adopted by any of the 200 or so different languages that the hunter-gatherers used in the nineteenth century. It was adopted from European political and legal theory in the twentieth century by university-educated, urban Aboriginal activists.
Second, sovereignty is not just about ownership of the land, as the Uluru statement says. Aboriginal activists and their academic supporters have argued that, because the High Court’s Mabo judgment recognised Aboriginal clans had their own laws that made them owners of their land, they therefore also had sovereignty over those territories. However, this wrongly assumes that small tracts of land ownership entail sovereignty. No Australian who owns a farm in the country or a quarter acre block in the suburbs thereby becomes the “sovereign” of that piece of territory. Aboriginal people are legally no more privileged. In modern nations, sovereignty belongs only to national governments, not because they are landowners but because they have the necessary political authority and power.
Third, sovereignty is an absolute notion, it cannot “co-exist” between or among sovereign powers. One of them must prevail. There can only be one national government. If there are more than one, then there must be more than one nation on that territory. Neither of these would have genuine sovereignty until a civil war or other contest for sole political power resolved who actually ruled the realm. You can call shared power, where it exists, some kind of political arrangement, but it could not be sovereignty. …
The historical grievance expressed by the Uluru Statement of the Heart could never contribute to reconciliation or a more unified nation. It is a bid for power which, even if it wins Constitutional approval, is bound to dishearten its advocates in the long run. The little, autonomous ‘nations’ they want to establish are a political fantasy, as the failed history of the vast majority of secessionist movements in the modern era have proven time and again. They will have virtually no impact on the lives of the 80 per cent of people who identify as indigenous and who live in the suburbs of the capital cities and regional centres with much the same standard of living as their white neighbours. The remaining 20 per cent of Aborigines who inhabit the living hell of the remote communities are the only ones whose lives can possibly be affected. Yet the track record of the forty-year experiment of self-determination and self-government in the Homelands movement in remote Australia since the 1970s has already proved, and keeps on proving, that the longer it exists the worse things become.
The Voice will simply be another expensive broken promise that will make national identities of a handful of activists who will rise to power briefly within its ranks but who end up like their disappointing predecessors in the Aboriginal and Torres Strait Islander Commission. The only difference will be that, if they get the Constitutional recognition they demand, no government of the day will be able to do what the Howard government, with Labor Party support, did to ATSIC in 2005 and shut down their office. Instead, if the Yes vote wins, the Voice will be there forever, an expensive, permanent embarrassment for the nation and a permanent contagion on the Aboriginal body politic.”
All excellent arguments for a No vote.