I'm on vacation over the Christmas break. But that doesn't mean the blogging has to stop. Over the next four weeks, I've queued up a four-part series on the contemporary debate in Australia over an Indigenous 'Voice' to parliament (which I originally submitted for my coursework this semester). Very few people back home seem to be paying attention to the latest twists and turns in our country's (mis)treatment of its indigenous population. Needless to say, the usual caveat applies: the views expressed this paper are the author’s own and do not reflect the views or positions of the Commonwealth Government or its agencies. 

Setting the Scene

In June 2017, Australia’s Referendum Council (a bipartisan body of indigenous representatives and experts) issued its final report to cabinet recommending constitutional amendment to grant indigenous Australians and Torres Strait Islanders a representative body that would serve as their ‘Voice’ to parliament . That recommendation arose out of a summit at Uluru earlier in May, at which assembled indigenous representatives stated urgent reform was needed to realise indigenous Australia’s ‘rightful’ claims to self-determination and political representation. The Statement was the product of lengthy consultations between a government insistent on purely symbolic recognition of indigenous Australians, and an indigenous movement seeking effective constitutional protections against racial discrimination.

In a joint statement announcing cabinet’s rejection of the Council’s recommendation, Prime Minister Turnbull and Attorney-General Brandis responded that the proposed system of special indigenous representation would violate the principle of equal political rights. The Government claimed that “democracy is built on the foundation of all citizens having equal civic rights” and differential representation was inconsistent with this ‘fundamental principle’. Labelling the proposal ‘radical’ and divisive, the Government’s position was that it “undermined the universal principles of unity, equality and “one person one vote”.” It argued that electing indigenous MPs from ordinary electorates was a preferable path to enhanced representation. 

These two narratives display fundamentally contrary notions of what rights are in a liberal democratic state, who may claim them and why. In Levy’s well-known classification scheme, the Uluru Statement is a claim not for self-determination but for differentiated representation rights. The key question is whether special group rights to political representation are inconsistent with the formal electoral equality of all citizens in a democracy. Whereas indigenous Australians claim parliament is blind to their interests, the Government’s case is that this difference-blindness is a feature, not a bug. Further, satisfaction of indigenous Australians’ claims, they argue, would create difference by making some citizens more equal than others. 

This series will argue that this debate is a novel development in the ongoing conflict over indigenous citizens’ place in the Commonwealth. The debate is moreover an unfamiliar for the voting public, who operate in a legal and social environment characterised by the absence of legally protected rights or even an implicit liberal discourse. It is unusual for Australian politicians, used to operating without the constraint of a domestic Bill of Rights, to make philosophical claims about liberalism democracy and this creates additional challenges for indigenous activists unused to engaging with such claims. 

The Politics of ‘Recognise’: From Beginning to End

For the last thirty years, indigenous Australians appear to have focused their political and social advocacy on what Canadian philosopher Charles Taylor has called the politics of recognition. Taylor argues that the nonrecognition or misrecognition of identity by others constitutes a form of harm or oppression, and that group identity claims are best understood as claims to reduce or ameliorate this harm. Using a constructivist understanding of identity, Taylor argues that since the individual sense of self is developed through dialogue with others, failure to receive equal recognition from others generates harmful individual and social stresses and the internalisation of an inferior or demeaned identity. 

Taylor’s primary critique against the universalism and difference-blindness of the liberal ideal is that it ignores the way that identities shape the individual experience of law. While most left-leaning, egalitarian liberals will accept that differential (material) outcomes may justify differential treatment, the politics of recognition implies that differential identities require differential treatment. This critique is often coupled with the observation that liberalism is rarely difference-neutral in practice, but rather acts as a hegemonic and colonising culture. Taylor (and others) have argued that minority cultural groups in fact have a shared interest in their continued survival as a group , an interest that may be at odds with the majority culture. 

In 1992, the shift from a discourse of self-determination towards a discourse of recognition began when the High Court decided Mabo v Queensland, establishing three legal facts: first, that indigenous Australians had been in sovereign possession of Australia at the time of conquest; secondly, that indigenous Australians had a body of law and custom which continued to be practised; and lastly, that British sovereignty did not entirely extinguish the legal rights and privileges established by that body of law. After two centuries of attempted genocide and assimilation, the nascent politics of recognition initiated a strong backlash from conservative Australia. 

In 1999, conservative Prime Minister John Howard put up a referendum question, asking voters to insert a preamble into the constitution honouring “Aborigines and Torres Strait Islanders, the nation’s first people, for their deep kinship with their lands and ancient and continuing cultures”. Howard’s motives were mixed at best; a constitutional monarchist who had risen to power opposing native land rights, his main objective may have been to insert a ‘poison pill’ into the simultaneous vote on a Republic. The referendum’s failure led to the establishment of Reconciliation Australia, a government body which a decade later would organise the ‘Recognise’ campaign. In the meantime, Howard abolished the existing indigenous representative body (‘ATSIC’, in 2004) and initiated the Northern Territory National Emergency Response (‘the intervention’, in 2007) which stripped indigenous communities of their autonomy, imposed paternalistic social controls (especially on welfare recipients), and flooded communities with federal police and bureaucrats. The intervention also suspended the application of the Racial Discrimination Act (‘RDA’), which has led the UN to repeatedly express concern. The intervention is still in effect in 2017. 

With successive governments unable or unwilling to politically challenge the substance of indigenous policy, they increasingly came to rely on symbolism and gesture. Prime Minister Rudd’s well-known Apology to Australia’s Indigenous Peoples changed little, and regular “Closing the Gap” reports dutifully trace the ongoing stagnation in indigenous Australians’ standards of living. Perennial culture clashes, such as over the dual celebration of Australia Day as ‘Invasion Day’ by indigenous people, highlight the ongoing frustration of both sides. In this context, the bipartisan plan to hold a second referendum on recognition of indigenous Australians in the constitution must have seemed like the ideal circuit-breaker. 

Indigenous Australians disagreed. Indigenous communities overwhelmingly rejected a statement of acknowledgement on the basis that it failed to offer substantive, structural reform. According to the dissenting statement of former conservative Minister Amanda Vanstone, attached to the Referendum Council report, while (majority) Australians “understand the importance of . . . recognition’ she had been surprised to learn that ‘indigenous Australians do not attach [to it] the same importance . . .and in fact reject it.” While indigenous groups were also strongly supportive of a constitutional prohibition on racial discrimination (to stop the Government suspending the RDA at will), the final Uluru Statement dropped it as a demand after the Government declared it unfeasible and some activists claimed it failed to go far enough. 

Next week, in Part 2, we'll look at the philosophy of liberal multiculturalism, and what it has to say about representation in a liberal democracy.