Too Soon? The Contested History of Australia. Colonisation, our constitution and catching up with our past. Reflections on the Voice referendum. An essay by Mark Swivel.
I see abalone and mullet caught by people I knew at school who fish in Botany Bay, every week in my social media feed. That’s the hope. My lounge room wall has a beautiful painting of the water I swim every week by Nickolla Clark, a stellar Bundjalung artist, and another one next to it by Michael Philp, Bundjalung man, of a family at the beach. That’s the hope. At the Tate Gallery in London with my son in April I picked up a book by Jack Manning Bancroft called Hoodie Economics (he set up AIME). That’s the hope. I will see Ella Noah Bancroft and her mum Bronwyn Bancroft at Byron Writers festival talking Mothers real soon. That’s the hope. Rachel Perkins and her films. Rhoda Roberts, back telling stories. Bobby Hill who won the Norm Smith. Ziggy Ramo and his new book. The music of Emily Wurramara and Baker Boy. That’s the hope. That’s the Voice I am listening to. My ear is open. My eyes are open. I am full of hope. Because hope is the conviction there is something worth working for, like Heaney said. The lives of all these wonderful Australians - and countless others - is all the hint I need to know what is right and what our history means and what our future looks like for all of us.
On 14 October 2023 Australia voted against the Voice to Parliament in a decisive way. An amendment to the Constitution of the Commonwealth of Australia was proposed and it failed. A majority in support of any amendment to our Constitution is required in a majority of states and overall to achieve a change like this (see section 128). Not one state voted in favour of the Voice. The ACT did, but that didn’t matter. All states voted against the change, with the overall vote ending just under 40 per cent for the Voice and just over 60 per cent against the proposal. The federal government had campaigned for the Voice at the 2022 election and Albo the PM explicitly emphasised its commitment to the proposal in his victory speech. The hopes of the creators of Uluṟu Statement from the Heart were dashed. A withering and historic defeat. It is, in a sense, still way too soon to talk about. Let’s remember Zhou Enlai said that when asked about the impact of the French Revolution … 200 years after the event!
Here’s a summary of the referendum results: https://www.abc.net.au/news/elections/referendum/2023/results?filter=all&sort=az&state=all&party=all.
I went to bed on 14 October 2023 after the referendum was defeated thinking about the backyard pool in our family home. I grew up in Little Bay, the Sydney suburb next to La Perouse, south of Maroubra. The land of the Gameygal clan of the Dharug, but known then to everyone as ‘LaPa’. When I was about 12 my Aboriginal mates stopped coming round to swim in our backyard pool. My sister and I went to the local public school where about a quarter to a third of the kids were ‘First Nations’, not that we called anyone that then. The School Magazine in those days would sometimes have a ‘tribal’ Aboriginal man on the cover. The local mob who now fish the waters together and run Blak Markets at Bare Island and Barangaroo were never asked to talk to us about their country in the 70s. There was a mission in our community at Philip Bay which kinda morphed into maybe the only suburban ‘indigenous’ community in Australia. There was loads of housing commission for working class people in the area including families like the Ellas whose kids played rugby and netball for Australia. I heard adults talking about how ‘some families’ would burn down the fence palings to make a fire in their backyards. One day my mates stopped coming to our place for a swim. Around puberty. It was not discussed but it was no mistake. I realised years later this was a subtle but powerful form of racism. We went to school together played footy together and surfed together down the beach but the swimming together at home stopped without a word.
The mullet and the abalone flash by in my feed, and the kids from LaPa, now middle aged, were all gutted by the result of the referendum, and said so on social media. I saw the Voice as being about two things. First, the chance for ‘Aboriginal Australia’ to talk, and to talk to power, and second, and a chance for the rest of us to listen. I was ready for us to listen. For our country to listen to the people of this land talking to us about life on this land, about our history, about our now, and about our future. I was ready, and so were 40 per cent of the people who live here. It is a great shame more of us were not so ready, or got distracted by one thing or another, or were not sure, or worried about ‘details’. In the end I was not surprised. We all saw how effective the No campaign was, how the federal opposition went in hard against the Voice, how the mining lobby pushed their commercial interests with gusto and buckets of cash, and I saw how certain anti-Voice advocates even split the Aboriginal vote and the campaign for the Voice.
In the end I saw the debate and the result itself as an argument for the Voice and proof positive that Australia was still ‘a racist country’, still too unaware of itself, its history and the deep need for change. Friends from overseas looked on aghast. Did we know what we were doing they asked from London and New York? Some radical friends voted against the Voice in imagined solidarity with advocates for more rapid change through treaties and asserting sovereignty. Who did that approach help? I saw a massive missed opportunity to adopt a very modest change, a stark refusal of our people to listen to the leaders of the minority whose land we had taken; land without which our prosperity and privileged lives would not be possible. It was to me an unmitigated disaster. A massive fail.
Let’s not forget we were voting for recognition and a mere advisory body with no actual power at all:
The purpose of the Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023 (the Bill) is to amend the Constitution to:
• recognise Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia
• establish an advisory body known as the Aboriginal and Torres Strait Islander Voice (the Voice)
• provide that the Voice may make representations to Parliament and the Executive on matters relating to Aboriginal and Torres Strait Islander peoples, and
• give Parliament the power to pass legislation with respect to matters related to the Voice.
Yes, we are ‘a racist country’ - which is just another way of saying that we have a continuing colonial history that cannot be wished away. Most people when thinking about racism think in terms of the individual statements or actions of people. They look to abusive language in the workplace or on the sports field or a copper doing something violent that is obviously wrong. This is the mere surface of why Australia is, and must be, in a fundamental way, a racist country. In the way that South Africa was and remains shaped by racism. Our history is part of the same body of water as South Africa only with different currents flowing and shifting within it. We have our own different history of dispossession and ‘frontier conquest’. Read the accounts of hundreds of massacres from Myall Creek to Coniston, which were only the most extreme expression of racist violence. Read the story of Flinders Island. Racism can be reflected in words and deeds in the present day but racism is a fundamentally structural and historically produced fact - and one that is always and everywhere about the control and use of land. What did empires do everywhere on earth? Take the land of the locals, put up a flag, and claim it as their own. The only way this absurd crime occurred was by force and violence - by killing people, by enslaving them, by raping women, and by creating myths that belittled the people whose life and culture were being destroyed. This is the truth of colonisation everywhere. When the Belgians went to the Congo or the Spanish to the Aztec lands or the English to Wales long ago (Welsh was banned. The lovely castles are a surveillance system created to subjugate the Celts). To think that Australia is exempt from the iron laws of history, from the structural reality of colonisation, is wrong. Deluded. The actions of individuals within colonial culture varied and the achievements of many good people living constructive lives should not be dismissed but the framework of colonial exploitation and conquest has to be seen for what it is. The rhythms of that atrocity continue to be felt in our contemporary society as racist ‘empire’ ripples through post-colonial society everywhere.
In the referendum debate all I needed to know was what certain people thought. Megan Davis, Larissa Behrendt and Marcia Langton, for starters. That was enough for me. If we were talking swimming I would have listened to Dawn Fraser, Shane Gould and Suzie O’Neill. It was that simple. Instead ‘we the people’ - or 60 per cent of us - listened to other voices. Stan Grant is another voice I listened to. Pat Dodson. Noel Pearson. When the vote came through it was is as if none of these people and their considered, informed, and intelligent views, mattered. These distinguished Australians when it came to the punch, their voices and their views, the whole meaning of their lives simply did not matter enough to enough people. A disaster. A massive fail, Australia.
Where did this leave us? Listen to Professor Megan Davis:
The offer of friendship that was the Uluru Statement from the Heart – the olive branch – was rebuffed by more than nine million Australians on one fateful day. The result is that the state of never being heard continues. The caravan moves on. We are stuck with a bureaucracy that Aboriginal communities desperately wanted to exit the space, a bureaucracy that subjugates freedoms, stifles human flourishing and speaks on behalf of them without consent. Not once did mainstream media question the absurdity of communities wanting more bureaucracy. That the media elevated the voices of politicians over the voices of communities in the campaign, whose voting results incontrovertibly put to shame the lie, prosecuted by both the Coalition and the national broadcaster, that Aboriginal people didn’t support the Voice, speaks to the epistemic injustice that plagues Indigenous affairs. We are stuck with media that doesn’t listen and politicians who know better.
See Megan Davis’ full essay here: https://www.themonthly.com.au/issue/2023/december/megan-davis/truth-after-voice#mtr
Where are we now? Recovering. Starting again? Hearing new voices? Ziggy Ramo’s new book - ‘Human? A Lie That's Been Killing Us Since 1788’ frames our past and future in a strong and pithy way. The concept of ‘indigenous’ Australia is all wrong, he argues. The three per cent - the ‘indigenous’ people - are not human, are ‘written off’. For more on the book: https://www.panterapress.com.au/product/human/.
You might know Ziggy from his reworking of the Paul Kelly classic, Little Things. That song is about the strike led by Vincent Lingari for 9 years at Wave Hill that led to fairer pay and in the end land rights for his Gurindji people. It is a story everyone in Australia should know, and too few do. Ziggy’s new lyrics for the Paul Kelly & Kev Carmody song go like this:
Gather 'round, people, and I'll tell you a story
Two hundred years of history that's falsified
British invaders that we remember as heroes
Are you ready to tell the other side?
We start our story in 1493
With a piece of paper called the Doctrine of Discovery
Invoked by Pope Alexander VI
Without this good Christian, our story don't exist
From little things, big things grow
From little things, big things grow
Captain James Cook, he boarded a fleet
And he was armed with the Doctrine of Discovery
The same tactics were used by Columbus
It's how today Australia claims Terra Nullius
Cause on that paper, the pope did write
That you're only human if you've been saved by Christ
And if there are no Christians in sight
The land you stumble on becomes your god given right
From little things, big things grow
From little things, big things grow
Is that your law? Cause that's invasion
That's the destruction of five hundred nations
The genocide of entire populations
Which planted the seeds for the stolen generation
And grew into my people's mass incarceration
Now we pass trauma through many generations
The lord can't discover what already existed
For two hundred years, my people have resisted
From little things, big things grow
From little things, big things grow
The wars continued since Captain James Cook
And this side of history, you don't write in your books
You don't want the truth and you don't want to listen
But how can you stomach Australia's contradiction
'Cause we went to war in 1945
We were allies against a terrible genocide
And I know it's uncomfortable but the irony I see
Is that you fought for them, but you don't fight for me
From little things, big things grow
From little things, big things grow
We should move on
Move on to what?
I still remember, have you forgot?
That Vincent Lingiari knew others were rising
Gurindji inspired us to keep on fighting
So call it Australia, go on call it what you like
I just call it how I see it and I see genocide
Now that you hear me, can you understand?
There will never be justice on our stolen land
From little things, big things grow
From little things, big things grow
This is the story of so called Australia
But this is the story of so much more
How power and privilege can not move my people
We know where we stand, we stand in our law
From little things, big things grow
(repeat)
Since 1991, four hundred and forty-one
Indigenous Australians have died in custody
The casualties of a war that never ended
But we are not yet defeated
Always was, always will be
Sovereignty was never seeded.
So, What Next?
What do we do now? We work towards treaty and truth telling. We come again. We hope that the worm turns. I see the situation as structural - because that is how I see everything. If Australia is to be a social democracy - a decent society - it must have a vision of its future led by a constructive, collaborative government inspired by universal human rights. That means inevitably an Australia committed to treaty, truth telling and practical justice. When we talk Holocaust denial in Europe it is settled, as Europe today grapples with a shift to the far-right, that it is unconscionable and repugnant to deny the facts of the Holocaust. It is equally repugnant to deny the facts of what is occurring in Gaza. Or what has happened to the Uighur in Western China. But we have not reckoned with our own history and its ongoing resonance. The result of the referendum is far closer to Holocaust denial than we imagine, far too close for comfort. We are yet to account fully for history and paying the price.
The Price … I have to mention Jacinta Price and Warren Mundine. The Price we had to pay. I assume they were paid for their engagements. The wealth of current Australia from the profits of our largest companies to the smallest land owners only enjoy wealth thanks to conquest, dispossession and the ongoing assertion of the sovereignty of the Commonwealth of Australia over this land. If you want to read the Mabo case we lawyers call that kind of sovereignty ‘radical title’ vested in the Crown. No joke: ‘radical’. The invoice for sovereignty is outstanding. The royalties are still due. The Price is yet to be paid and until it is, Australian society will not be free, will not be legitimate, it will - we will - have a black mark on our school report. We have a default judgement against us, a bad credit rating. In truth, we will remain a kind of bankrupt people, living with an undischarged bankruptcy. Our creditors are the First Nations of this land who deserve more than a few cents in the dollar. But money is a small part of what this is all about. This is mainly about truth and respect.
Lest we forget. A few years ago a gathering of aboriginal people at the top end of the country decided that our federal parliament should hear more from our First Nations people. The idea was to reconcile ourselves to the truth of our history and to get our parliament is listen to what elected Aboriginal leaders had to say on issues that directly affected them. Given the dispossession, given the killings, given the stolen generation, given the over incarceration of Aboriginal people, given the life expectancy and infant mortality, given the lived experience of so many people. Have a read: https://ulurustatement.org/the-statement/view-the-statement/.
The Voice seemed such a modest proposal to me. The Uluru Statement from the Heart contains an expression of a desire for First Nations Australia to talk to the Commonwealth of Australia - the government of the country which now sits on and runs the land that until 1788 had no white or European people involved in it. In historical terms that is incredibly recent. In evolutionary terms it is an eye blink. The Voice was conceived as a representative democratic institution, through a series of elected bodies drawn entirely from First Nations people, speaking to parliament in Canberra. Making proposals, with no legislative power whatsoever. Malcolm Turnbull when prime minister described the Voice proposal as a third chamber of parliament. That was always way beyond disgraceful. For a lawyer, businessman and politician of Turnbull’s knowledge and experience to say that was wilfully destructive and racist. The Voice was an opportunity for our country to open a dialogue and no more than that. Yet a majority of people in a majority of states in this country could not support it. Yes, Turnbull changed his mind, but some things must be remembered. Read this and weep: https://www.theguardian.com/australia-news/2017/oct/26/indigenous-voice-proposal-not-desirable-says-turnbull.
Closing the Gap has long been a mirror to Australia we did not care to use. Annually the minister in Canberra wrings their hands. For 24 hours the news cycle recites the statistics. And then it is gone and done for another year, for nearly everyone. So much good is done by First Nations Australians everywhere in law and medicine, arts and sport, in education and business that there is always a chance for mainstream white and powerful Australia to ignore the scoreboard. A chance we take, in every way that matters. Many of the metrics for our remote communities remain closer to less developed countries than the national norm. The unstated subtext of meta-policy in our government is that Aboriginal Australians have had their chance; some have taken it while others have not. Our default is to see even any triumph over racism as individual rather than structural. For more on Closing the Gap: https://ctgreport.niaa.gov.au.
This country needs to get over itself. Our denial of our history is a disgrace. It is the same as the denial of what occurred in Germany or Russia or China in the twentieth century or in South Africa, or across North America, or in Cambodia, or across the Middle East. The denial of our history is not viable. Our country will remain sick, addled by the virus of colonisation forever if we do not account for it. We are not responsible personally for the acts of our forebears but we are all responsible for what happens next. As our climate bites us, as inequality rots us, as government fails.
Before Europeans lived here there was a culture, a people, a series of communities struggling to live in this land. We colonisers barely have a lease on this land. We declare ourselves owners, and by law we are. Everyone who is a registered proprietor of land - as I am - and most people I know - are complicit in the colonisation of this land, which continues. We need fewer, far fewer, people in jail, or hospital, or morgues too early. We need better housing, better health care, greater cultural recognition, more cultural sharing and exchange, more wealth. Australia must share more of its common wealth. The referendum was lost. Treaties will come. The work continues. It has barely begun.
To me in the quiet since the referendum we have conducted a kind of sorry business. As our younger people grow in their confidence and knowledge I hope we move decisively towards treaties and more substantial listening and action that sees Aboriginal people leading change for Aboriginal people - in our communities around here on the land of Arakwal, the Jali, the Minjungbul andthe Widjabul Wia-bul, or the land where I grew up of the Gameygal of the Dharug nation.
As a lawyer I see what Australia means. The realities of the cases processed by the local courts every day and the crazy over representation of mob. Talk to anyone working for the Aboriginal Legal Service and they will tell you a story of continuing suffering, of struggle, of underfunding and constant overwhelm for everyone - for the defendants and their families, for the lawyers and social workers, for the police and jailers. The two main cases I am working on involve First Nations people. Both have been in the media so I can share their tales. It is a privilege to work for Uncle Boe and for Rhonda. They teach me so much in the way they have carried their suffering, the joy and the burden of being black in Australia. The extra load of our history. I am inspired by them. It is the work worth doing. Truly worthwhile. An effort that rewards in itself. The hope is in their survival, their tenacity, the living of their lives.
The Voice was a gesture in law, of course. The law, in all its oppression, is fundamental to change. Native title was a hard won victory but a limited one. Eddie Mabo proved to the colonial power of the Commonwealth of Australia in its High Court that the Meriam people were the traditional and legal owners of Mer Island, and always were. No one else has ever owned it. The law caught up with that fact in 1992. Somehow imperialism had passed the Mer by. Like the wilderness of Soomaa in Estonia, untouched by the Soviets, Australia had no use for that part of the surface of the earth. The Mabo case is a story of luck as much as anything else. Had Mer Island been covered in guano like Nauru its history may have been different. Denis Denuto would not have been able to make his famous joke in The Castle: it’s the vibe, it’s Mabo its … um, the vibe your honour. But here’s the thing. The real ‘vibe’. Native Title is recognition on the terms of the coloniser. It seems to be a grand statement of justice. It is not. It is more a grudging accomodation. Mabo corrected the ugly doctrine of ‘Terra Nullius’ but confirms that ‘radical title’ - the ownership of all land in the Commonwealth - remains vested in the Crown. Land rights legislation.
The law may evolve further yet. Change does occur, however slowly, however timid. When I left law school in 1991 ‘terra nullius’ was yet to be overturned. The worm does not begin to turn until paragraphs 17 and 56 of the Mabo decision in 1992:
17. One thing is clear. The [Meriam] Islands were not terra nullius. Nevertheless, principles applicable to the acquisition of territory that was terra nullius have been applied to land that was inhabited. Justification for this extension has been sought in various ways, including the extent to which the indigenous people have been seen as "civilised" or to be in permanent occupation.
56. … The lands of this continent were not terra nullius or "practically unoccupied" in 1788. The Crown's property in the lands of the Colony of New South Wales was, under the common law which became applicable upon the establishment of the Colony in 1788, reduced or qualified by the burden of the common law native title of the Aboriginal tribes and clans to the particular areas of land on which they lived or which they used for traditional purposes.
Have a read of the whole Mabo case here: http://www6.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1992/23.html?stem=0&synonyms=0&query=title(mabo%20%20near%20%20queensland).
In 1994, Denis Walker failed with his argument to the High Court that the criminal law did not apply to him or his people, because our criminal law, according to the circular reasoning of our legal system, must apply to everyone. Frankly the decision does not answer the question and merely means ‘the law is the law’ and whatever we say it is. Read this short case here: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1994/64.html
Jim Everett-puralia, who has been charged for protest offences against logging in Tasmania might also fail but he is a voice worth more than a ‘casual listen’. He says the law of the land does not apply to him or his people because he is not a citizen of Australia. Jim says he cannot be a citizen because there was no treaty, no negotiation, that the Commonwealth merely assumes that he is a citizen and the law therefore applies to him. Jim refuses to go to court because he rejects its authority. There is an integrity to his fundamental and principled objection to the operation of law. But I can see in his position the space in which treaty negotiation starts. There is a powerful argument here, an inherently political argument informed by history. Namely that no treaty was ever struck in Australia, anywhere. In New Zealand it was. In South Africa history the majority now runs the country as it tries to evolve from its colonial past. The Solomon Islands is a sovereign nation. Yet we could not even open an ear to a Voice. Here is an article on Jim: https://www.theguardian.com/environment/article/2024/jun/04/jim-everett-puralia-meenamatta-arrest-warrant-aboriginal-activist-tasmania-logging-protestor-hobart.
Everett-puralia has a question for us to answer which seems to be this: … if I am a citizen of this country, on what terms are we doing business? How are we going to live together on this vast land mass? What have you people done to my country and how do you intend to live here for the rest of all time?
That seems the question being asked. That is the Voice to listen to, while the country and its law grinds on in its inevitably frustrating way, while the mullet and the abalone are running in Botany Bay, in Gamay, today.
That’s the hope.
Post script: This essay is the last written for a series of conversations held in May and June 2024 on how we might respond to the emergencies in climate, inequality and governance. My thesis is that we need to understand our past to create a new future through collaborative constructive government in the public interest, committed to a long term vision of the future, inspired by a shared belief and understanding of universal human rights. The struggle of the Arakwal or Ngunnawal is the same as the Sami or the Inuit. Coloniser and colonised and the great-great-grandchildren of all of them, of all of us, look into the night sky or the barrel of a gun in the same way. Yes, a different life experience is brought to each moment, each unique soul has its own identity - we are an inevitable cocktail of self and community.
In the end, the Buddha is right. It is all story. All ‘mind’. The history of the world. Every strain of philosophy. Marx and Mazzucato. Freud and Frida Kahlo. Megan Davis and John Maynard Keynes. All of the stories express a yearning to live with meaning and passion. For the life to match the heart. For the body to move in space so that each belongs to the other. But it is a story. A shadow on the cave. We are nothing and everything all at once. We are a vapor that bleeds. We imagine the infinite universe. We sense all the creatures arrayed in the teeming living world. And we are a blink, a slice, a fraction and a fractal. Our basic way of relating to each other today as human beings is wrong. That is where the trouble begins. We have trouble ahead.
At Habitat where I live sometimes Aboriginal kids turn up on their bikes and use the air hose and jump the fence into the pool. I like it when that happens. They are the kids who stopped coming to our pool in the 70s. I am glad they are coming back.
Mark Swivel
20 June 2024