Pearls and Irritations

The prolonged debate about the Voice to Parliament was dominated by the question about what rights should be accorded to our First Nations communities. It was, without doubt, the most potent argument advanced by proponents of the no case. By enshrining the Voice in the constitution, it was said, Aborigines and Islanders were to be given special rights not available to other Australians. It was, therefore, unfair and discriminatory and divided the nation. What is more it encouraged indigenous separatism which threatened national unity.

Clearly the advocates for the yes campaign failed to effectively counter these arguments. In urging the case for indigenous rights they referred to deep history and present day disabilities and inequality. But the fact that indigenous rights had been enshrined in international law from at least as far back as to the 1950’s and had the support of a large majority of the world’s nation states and also by most of the world’s population was never employed in countless hours of discussion and debate. It was as though indigenous leaders had adopted a form of intellectual autarchy. The argument seemed to be that parochialism was the best way to proceed, that any mention of the United Nations and international law would lose rather than garner support. They may have been right but in retrospect that is by no means certain.

It is clearly the case that the voters knew less about international law than they did about the constitution. But what progress has been made in Australia up till now depended a great deal on principles brought into domestic law from outside. This was clearly the case in relation to land rights, the one area of demonstrable achievement. This was true in the case of the Northern Territory Land Rights Act of 1976 and the High Court’s Mabo Judgement in 1992.These were achievements which far outreached the modest proposals enshrined in the Uluru Statement.

But Mabo did not bring an end to Australia’s engagement with the evolution of indigenous rights. The 1990’s saw the beginning of a long process of negotiation which led eventually to the presentation of the Declaration of the Rights of Indigenous People to the General Assembly in 2007. It was introduced by the Australian Indigenous leader Les Maelzer who, at the time, was Chair of the Global Indigenous Caucus. One hundred and fifty countries supported the Declaration. The Rudd Government signed the declaration in 2009. Australia has, therefore, been committed to the principles for fourteen years. It has had bi-partisan support. Meanwhile the Law Council of Australia observed in 2019 that the Declaration was, ‘the authoritative international standard informing the way governments across the globe should engage with and protect the rights of indigenous people.’

The unavoidable conclusion is that Australia has made a commitment to the rest of the world to abide by the Declaration. Yet none of the governments in power since 2009-Rudd, Gillard, Abbott, Turnbull, Morrison, or Albanese did anything to educate the electorate about what is at stake. We big note ourselves overseas and rattle on about a ‘rules based international order’ but at home we whisper ‘don’t mention the U.N.’ How many times was the Declaration mentioned during the Voice debate? The only reference to it that I have found was in a front page editorial in The Age on the eve of the vote. It is worth quoting:

“Fifteen years ago, Australia endorsed an important agreement: the U.N Declaration on The Rights of Indigenous People. That Declaration asserted the rights of those people around the world to maintain and strengthen their own institutions, cultures and traditions. It supported their self- determination and effective participation in decision- making relevant to them. By endorsing that declaration, Australia sent a message to the world’s Indigenous people that it cared about their rights and their future.”

The Howard government refused to sign the Declaration in 2007 and was critical of the Rudd government when it did so two years later. But there was a sea change in 2014 when Julie Bishop became the Coalition Foreign Minister. She strongly committed the country to the Declaration and attended the World Conference of Indigenous People at the U.N in 2015 which reaffirmed international support for the provisions of the Declaration. In a DFAT Indigenous Peoples Strategy 2015-2019 document it was asserted that Australia, led by DFAT and Prime Minister and Cabinet ‘played a key role in the World Conference which adopted an outcome document by consensus ‘that committed all Member States to promoting and protecting the rights of indigenous people around the world.’ There was an ongoing commitment to the Declaration which Australia supported and it welcomed ‘the continued full and effective participation by all indigenous peoples in achieving the ends of the Declaration.’

When Penny Wong became Foreign Minister, she adopted many of Julie Bishop’s policies including support for the two key international documents – the Declaration of 2007 and the Outcome Document of 2014. But she went further, adopting an Indigenous Diplomacy Agenda and appointing an Indigenous Ambassador who would allow Australia to, ‘ harness the soft power assets of Indigenous Australians in ways that add to our international influence.’ She declared that the incoming Labor government would deliver a ‘First Nations foreign policy that weaves the voices and practices of the world’s oldest continuing culture in the way we talk to the world.’ Clearly the Voice to parliament was central to this innovative project. The resounding defeat of the referendum totally undermines Australia’s hope to present itself to the world as a progressive nation in step with international law and global opinion. Australia was recently asked by U.N agencies to report on what steps had been taken ‘to provide for constitutional recognition of indigenous peoples.’ In reply, DFAT reported that Australia was committed to ensuring that our First Nation’s people were ’heard, respected and empowered’ and that their voices would ‘have a say in the decisions that affect them.’

We should not be surprised if as a consequence of the defeat of the referendum the world judges us harshly, accusing us of bad faith and hypocrisy. The extraordinary fact that our international commitments were rarely, if ever mentioned, in such a consequential debate suggests, at least, that the face that we turn to the world is very different from the one we present to the domestic electorate, and that international documents we sign up to are kept from sight rather than explained and publicised.

What then for the First Nations’ leadership? They pitched the Uluru Statement to the home crowd trusting in the good faith of the Australian people and the integrity of the coalition politicians. It must be clear by now that it is time to return to the international stage and follow the path of pioneers like Les Maelzer and open a new era of international activism at the UN in New York and Geneva, but also in the Pacific and beyond using their soft power in ways not envisaged by Penny Wong.

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