We said No to the Voice. What now ? Some suggestions for Plan B

 

 

Author Andrew Smallman 15 October 2023

Australians have rejected the proposal for an indigenous Voice to parliament and the executive at a referendum on 14 October 2023.

Yes campaigner Noel Pearson said in an interview on  radio 3AW with Neil Mitchell  that a No vote would be a “precipice, an abyss” into which Australia would plunge.

Well, here we are, the numbers are in and nobody has fallen off a precipice. No abyss has opened up to swallow us.

Which leaves us with the reasonable question: If not the voice what is plan B?

In the aftermath of the No vote, it seems to me that three themes have emerged in statements by disappointed yes campaigners.

One theme is nihilism. There is no alternative. All is lost. Reconciliation is dead.

A second theme is demands for a truth and reconciliation commission (TRC)  “like they have in South Africa”.  We might respond to this by pointing out that Australia is not South Africa and never has been. We might also observe that enthusiasm for the TRC in South Africa is by no means universal with many commentators on the ground questioning its value.

A third theme is that we must re-double our efforts to “close the gap”. At a superficial level this seems perfectly reasonable but unless we come to better understand why aborigines in remote settlements have such a poor quality of life then rhetoric about closing the gap is just words.

A major problem in remote communities is youth suicide. I am a retired psychiatrist with experience of suicide, its causes, and measures which can reduce its frequency. People who feel like outcasts are much more likely to kill themselves than people who feel like valued members of a functioning society. The way forward will not be found in rhetoric or more funding for services. As a nation we need to implement policies which will help people in remote communities who feel like outcasts to become valued members of the mainframe of the larger entity of Australian society.

In the discussion below I put forward three specific suggestions which could help this process along.

I put the view that plan B in 2023 and beyond is what should have been plan A  in 1967 leading up to the referendum held in that year.

I will try to explain what I mean.

Debate about Aboriginal policy in Australia has been conducted around two main conceptual ambitions.

The first is based on the equality-engagement paradigm. This holds that the aim of policy should be to assist disadvantaged people, including some aborigines and others, to achieve equality  with the mainstream of the population in law and rights and responsibilities and opportunities.

Any explicit policy driven initiatives will be in the form of affirmative action programmes which are self limiting. They cease to operate when their objective has been achieved. That objective is to become engaged with and part of the mainstream, or “mainframe” as Noel Pearson calls it, using a term suggested by his mentor Galarrwuy Yunupingu.

Mr Pearson’s term mainframe seems very appropriate to me as it conveys the idea of people joining the flow then maturing to become part of the structure of the society which enables that flow to occur.

The second conceptual basis of aboriginal policy is grounded in the idea that aborigines require special provisions  in perpetuity.

Precisely why they require these special provisions is never clarified. However it appears to rest on a kind of inverted exceptionalism which represents aborigines as damaged by the ravages of colonial invasion perpetuated by the mystery of intergenerational trauma.

It is fundamentally separationist in ambition.  This has been the main thrust of elite aboriginal activism since the 1960’s. Aborigines must have separate lands, separate health services, separate education, separate housing, separate welfare services,  separate laws, separate judicial arrangements and never-ceded aboriginal sovereignty.

Much of the rhetoric around this approach utilises words like justice, truth, recognition, reconciliation, reparations, rightful place, treaty, Makarrata, sovereignty and self determination.  These are notions with a legalistic character. The most ambitious expression of this legalistic-separationist approach to aboriginal policy was the Voice proposal which sought to alter our constitution to provide special provisions in perpetuity for people who identify as aborigines and for no other reason.

The two approaches to policy are incompatible and mutually exclusive.

Which policy leads to the best outcomes; legalistic-separationist-special provisions or equality-engagement ?

As a result of the naturalistic experiment  of aboriginal policy since 1967 we now know that the majority of aborigines who  opted for equality and engagement have become part of the mainframe and have achieved a good quality of life in the urban middle class.

An unfortunate minority find themselves stranded in remote outstations where they were supposed to enjoy the benefits of aboriginal culture untrammelled by colonial overlords.

These people have had the full dose of separation and special provisions. The outcome has been a disaster. They are caught in a poverty trap, enfeebled by welfare dependency and ravaged by internecine violence.

The legalistic-separationist-special provisions experiment has failed.

The equality-engagement  approach has been successful.

Now we can cut through the  post-referendum recriminations and argy-bargy about what comes next.

We already know what needs to come next. The evidence is in.

The task is conceptually quite straightforward.

For the majority (70-80%) of urbanised aborigines who are already part of the mainframe of society no action is required or desirable.

For the minority (20-30%) of aborigines who are trapped in the purgatory of dysfunctional remote communities we can offer affirmative action plans which will help these people become part of the mainframe.

In crafting these plans we need to be mindful of what governments and official policies can and cannot achieve. Neither governments nor policy initiatives can tell individual people what they should hope for, think, believe or do. Governments can create legal frameworks within which individuals can make their own decisions and governments can support some of those decisions financially.

So, with these thoughts in mind, here are my three suggestions for a post referendum plan B.

1. Combine all aboriginal and mainstream health, welfare, education, housing, legal and other services. This could start on a voluntary basis if initially a region elected to trial combining services with an evaluation programme over 5 years. The process to include all services might take 20 years.

Combining aboriginal and mainstream services will provide clients with a staff cohort having greater breadth and depth of knowledge and experience than is possible with separated services.

 Part of the process will be evaluation of services as to outcomes and ensuring services are provided on the basis of need not ethnic identification.

2. Enable private ownership of property on lands currently under corporate ownership acquired through aboriginal land rights legislation.  Private property ownership is one of the bedrock characteristics of modern society. Without secure private property ownership individuals cannot have their own home and have little opportunity to make any kind of capital investment which might allow private enterprise to flourish.

I envisage the creation of a land rights and native title commission with authority to host the necessary negotiations and present actionable proposals to government.

3. Some people might decide they would prefer to move out of a remote settlement to an urban setting with more opportunities for education, employment, health care and personal enterprise.

One way to support this would be by funding internal migration through a voluntary  affirmative action programme.  This could provide a grant of money sufficient for a family to acquire a house and land at median price in a regional city plus financial assistance during the post relocation adjustment period.

These three suggestions are practical. They are achievable. They are specific. They will provide disadvantaged people with opportunities not previously available. They will expand the framework within which people in remote areas can evolve their lifestyle.

They will not fix every problem by next Tuesday. The sorry state of aboriginal policy today has taken 50 years to evolve. It might take that much time again to rectify the situation.

Good public policy does not have to be dramatic or revolutionary. At best it is like the rudder on a supertanker. If we turn that rudder just one degree the ship will arrive at a destination thousands of kilometres from the one originally considered.

Given opportunities it is the initiative of individuals and families which will gradually make the big changes.

There are some things which we would do well to stop trying as they have failed.

Chasing after rainbows like recognition and reconciliation has not delivered any useful outcome.

Setting targets for “closing the gap” has failed without the practical means of reaching those targets.

There are two other things which I propose as part of a plan B initiative.

One is to delete the question on the census form about aboriginality. Collection of this data has not served a useful purpose for people who are aborigines and it has provided perverse incentives for people who are not aborigines. Various anecdotal estimates reported in the public domain have suggested that the number of fake aborigines who ticked the box at the 2021 census might be somewhere between 100,000 and 300,000.   

The other is to repeal S51(26) of the constitution. This is the race power.

I put the view that the notion of humans being divided into various races is obsolete, contributes nothing useful to the Australian polity and provides perverse incentives for activists to divide our country into artificial sectarian categories. This will require yet another referendum for which there will be little appetite by the people.

However I think the Commonwealth Government could publish a white paper offering the opinion that the concept of race is now obsolete and the wording of the Racial Discrimination Act of 1975 effectively makes S51(26)  a dead letter.

There is a precedent for this in Section 25 of the constitution which is regarded as a dead letter as it contravenes the Racial Discrimination Act of 1975 and the International Convention on the elimination of all forms of racial discrimination, 1969.

I am a retired psychiatrist not a lawyer but I could readily advance an argument that S51(26) also contravenes the Racial Discrimination Act and the International Convention. 

Here is an excerpt from the Racial Discrimination Act. The emphasis is mine.

9  Racial discrimination to be unlawful

             (1)  It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

 

Andrew Smallman,  October 2023

 

 

 

 

 

 

Noel Pearson's Gough Whitlam oration 2013 His views have changed. Why ? 11 October 2023

 

Whitlam Institute, University of Western Sydney  13 November 2013.

Here is an excerpt from Noel Pearson’s oration in 2013 which I think is highly relevant to his passionate advocacy for the Voice proposal to be put to a referendum of the people of Australia on 14 October 2023.

I have no problem with people changing their minds about matters of public importance.

However in the context of debate about the Voice proposal, I have not seen in the public domain any acknowledgement by Mr Pearson that his position on a range of matters appears to have changed in the 10 years since 2013. These include racial discrimination in the Constitution, the failure of race-based solutions to aboriginal disadvantage, the negative effects of well intended policies and the failure of policy to hold indigenous people to the same standards as other Australians.

In 2013 Mr Pearson said “ A person should be rewarded on their merits and assisted in their needs. Race and indigeneity should be irrelevant to matters of public welfare and government assistance.”

Yet in 2023 in the lead-up to the Voice vote he has frequently insisted that indigeneity is the all-important issue.

He said in 2013 “ We need to move from a position of racial discrimination in law and public policy to one of individual equality before the law”.

The words spoken by Mr Pearson in 2013 have been repeated, almost word-for-word by advocates of the No case in 2023.

Here follows the excerpt:

The emphases are mine. I have viewed the video of the address on the website of the Institute and the transcript appears to be an accurate record of Mr Pearson’s words.

“For the most part, our Constitution is fine. It has set up the legal framework for a stable, prosperous democracy in Australia. It is – mostly – written in neutral democratic language. It contains no gender bias. It makes no mention of preferred sexuality. It contains no religious bias. It is primarily a fair and just document, and creates a fair and just democratic system. Except in two respects.

There are two problems in our Constitution. The first is the non-recognition of Indigenous peoples. The second is racial discrimination: our Constitution still contains provisions which allow governments to discriminate on the basis of race. Prior to the 1967 referendum, Indigenous peoples were explicitly excluded from the Constitution. Section 127 prevented Indigenous people from being counted in the Census. Indigenous people were also excluded from the scope of s 51(xxvi), the Race Power. The 1967 referendum reversed this exclusion by deleting s 127 and deleting the exclusion in s 51(xxvi).

Ironically, however, the Constitution now makes no mention of Indigenous peoples whatsoever. As a founding, historical document, our Constitution is inadequate. Mabo overturned the doctrine of terra nullius in Australian domestic law. But our Constitution fails to recognize that this land was not empty when the British arrived. There is no mention of the Indigenous contribution to Australia’s heritage and history.

The second problem is that the Constitution contains racially discriminatory provisions which enable governments to treat Australian citizens differently on the basis of race. Section 25 contemplates barring races from voting. S 51(xxvi) gives the Commonwealth the power to pass race-based laws – whether positive or adverse.

This allowance and promotion of racial discrimination is at odds with fundamental tenets of democracy: individual equality before the law, the rule of law (in that the same rules should apply to each individual regardless of colour or ethnicity), and the idea that each person’s vote should be equal. The racial discrimination in our Constitution is an undemocratic error. On the issue of race, our founding fathers erred.

Their error was based on outdated factual and moral beliefs, now known to be incorrect. Racial categorizations between human beings, we now know, have no scientific basis. Race should no longer, therefore, have any legal or policy application. We now understand that there is only one race: the human race. Most would now agree that treating citizens differently on the basis of race is unfair. This is why removal of racial discrimination from the Constitution has strong public support.

The race-based approach has also been unsuccessful in addressing the problems we face in Indigenous affairs. This practical failure has had its roots in the philosophical understandings that underpin the race-based approach. Race is a colonial concept. Inherent in the idea of race is the notion that some races are superior and some are inferior. The incorrect notion that Indigenous people belong to an inferior or incapable race has arguably had a poisonous effect on Indigenous policy, law and, consequently, Indigenous people.

While in the past there was much adverse discrimination against Indigenous people on the basis of race, now there is positive discrimination – well intentioned – but often with adverse results. Cape York Institute’s work in welfare reform has shown us this all too clearly. The race-based approach has perpetuated low expectations and undermined personal responsibility.

Consequently, as many Indigenous leaders have argued, the law and public policy often fails to hold Indigenous Australians to the same responsibilities and expectations as other Australians. This attitude does Indigenous people a great disservice.

We must unequivocally reject the idea that Indigenous people are innately or biologically disadvantaged. Indigenous people are not an inferior race. Yes, Indigenous people are for the most part socially and economically disadvantaged due to past discrimination, dispossession and other contemporary factors. And yes, we should do everything we can to assist disadvantaged people, black or white. But we should do so on the basis of individual need – not race. A person is not automatically disadvantaged just because he or she is Indigenous. A person should be rewarded on their merits, and assisted in their needs. Race, and Indigeneity, should be irrelevant to matters of public welfare and government assistance.

We need to move from Indigenous non-recognition to recognition. And we need to move from a position of racial discrimination in law and public policy, to one of individual equality before the law.”

 

I think that many Australians would agree with most of what Mr Pearson has to say here, especially about all of us being equal in law regardless of race or indigeneity.

The only matter on which I hold a contrary view is about constitutional recognition of any ethnic group. The Constitution does not mention any racial or ethnic or religious or any other particular group of people. In my view there is no good reason for it to do so.

I am well aware that many prominent Australians are saying in in 2023 that they would support the insertion into the Constitution of some form of words giving “recognition” to aborigines  (if anybody can figure out who is an aborigine)  or indigenous people (if anybody can define what indigenous means) or firstnationspeoples (if anybody knows what that means) but the old adage “be careful what you wish for” applies. At the very least our leaders should  subject this wobbly notion to a long term process of constitutional review before promising anything.

End