Silencing the Indigenous Voice: How Australians Have Failed Their Own People Part I

by | Oct 24, 2023

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About Virendra Ashiya

Virendra Ashiya is a law student at NLSIU, Bengaluru. He is interested in Constitutional and Criminal Law and works with Project Second Chance to advocate for the rights of prisoners and for post-prison rehabilitation opportunities. Virendra is also a research associate to Dr Elaine Dewhurst for a project on age discrimination in India.

Last week’s failed referendum affirms the deep-seated racial prejudice embedded in Australia’s public institutions, and demonstrates how this marginalisation continues to be perpetrated by the Australian populace more broadly. Following the conclusion of the week of silence observed by Indigenous leaders in recognition of the Voice to Parliament’s defeat, it is now time for Australia to reckon with its shameful record of treatment of First Nations peoples, and to confront and address the exclusion and oppression with which Aboriginal and Torres Strait Islander communities still contend.

The 122-year-old Constitution of Australia does not include any reference to its Indigenous population. Despite being the home of the oldest continuous culture in the world, Australia has missed an invaluable chance to recognise this history through the Constitution. Australia’s is the only constitution belonging to an industrialised nation with a colonial history that continues to withhold recognition to its First Peoples. By way of contrast, other settler-colonial states including New Zealand, Canada and the United States have each formally acknowledged their Indigenous populations (although abiding inequality still marks the experiences of many of these Indigenous communities). The first part of this blog series will address the background to the referendum and the enduring disadvantage afflicting Australia’s First Peoples. The second part of this series considers the Voice initiative itself in greater detail, examining its claims to greater inclusivity and its relationship to Indigenous self-determination.

On the 14 October, Australian citizens were required to vote Yes or No to a proposed law “to alter the Constitution to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice.” In order to pass, the 2023 Australian Indigenous Voice referendum would have needed to clear a double majority, meaning a majority of voters in a majority of states (at least four of the six states) as well as a national majority of voters (an overall ‘Yes’ vote of more than 50 percent). An affirmative result of the vote would have formally granted acknowledgement to Aboriginal and Torres Strait Islander peoples within the Australian Constitution and would have resulted in the establishment of an Indigenous advisory body called the “Voice to Parliament”, to provide counsel to the government regarding laws and policies with an impact on Indigenous communities. The Voice initiative was originally derived from the Uluru Statement from the Heart, a call to action from a conglomerate body of Indigenous leaders shared in 2017. The Uluru Statement calls for substantive reform to help realise Indigenous peoples’ human rights, through the establishment of an Indigenous Voice to Parliament, alongside Treaty and Truth-telling.

Continuing Colonial Hegemony in Australia

The Indigenous peoples of Australia have endured a protracted and distressing history of colonisation and dispossession. The violence wrought by the settler-colonial state continues to harm fractured Indigenous communities, with vast discrepancies in health, lifespan, incarceration rates, susceptibility to abuse, and educational outcomes in comparison with the wider Australian populace. Previous endeavours to ‘Bridge the Gap’ between Indigenous Australians and the rest of the nation and to acknowledge pre-colonial Indigenous sovereignty – such as the republic referendum in 1999 – have consistently proven unsuccessful. The failed referendum of 2023 is another significant missed opportunity to render Australia’s Constitution more inclusive, and to work towards healing the centuries of damage inflicted by colonial domination.  

To understand the discriminatory nature of the Australian Constitution towards Aboriginal and Torres Strait Islander peoples, three aspects are worth noting. Firstly, there is a noticeable absence of any mention of Aboriginal peoples in the Constitution, as the historical narrative of the nation state has conventionally been represented as beginning with Australia’s colonisation by the British in 1788. Secondly, Section 51(xxvi) of  the Constitution retains the authority to empower the federal parliament to enact legislation based on an individual’s racial background. This authority has previously been leveraged to designate land exclusively for white Australian residence and occupancy, ignoring the millennia of stewardship First Nations peoples have exercised over their ancestral lands. This power has also been used to impede Indigenous individuals from securing employment opportunities reserved solely for white Australians. Sir Edmund Barton, Australia’s first Prime Minister, explicitly justified the inclusion of this power in the Constitution to “govern and control the coloured and inferior races” within the boundaries of the Australian Commonwealth. As such, the profound prejudice embedded in Australia’s Constitution is the intentional result of centuries of institutional racism and race-based discrimination across Australia.

Finally, as a federal system, the recognition of individual States’ authority to disenfranchise individuals based on their race is also acknowledged in Section 25 of the Constitution. It is worth noting that no other present-day constitution includes a clause of this nature. These provisions, which derive directly from discriminatory beliefs, are premised on discredited racist and sexist nineteenth-century ideologies which asserted that an individual’s race determined their intellectual capacity, their aptitude for specific roles and occupations, and their place in the social hierarchy more broadly. These principles and concepts subsequently formed the foundation of the White Australia Policy, which is responsible for producing catastrophic human rights violations that still harm Australia’s First Peoples today, including the inherited trauma of the Stolen Generations. These racially-discriminatory practices continue to be deeply ingrained in the fabric of the Australian Constitution, which the Voice referendum sought to acknowledge and rectify. Its failure indicates the dangerous institutional and cultural perseverance of attitudes which have underpinned the settler-colonial violence the state has inflicted on Aboriginal and Torres Strait Islander peoples since the beginning of Australia’s colonisation.

Having examined the hegemonic racial discrimination within Australia’s public institutions, Part Two of this blog series assesses the justifications for the Voice, and how it interacts with ongoing advocacy for Indigenous self-determination in Australia.

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