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Mabo, Keating and a Voice

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As political opponents of an Indigenous Voice muster their forces, some insights might be drawn from the political landscape of three decades ago. Frank Brennan outlines the current dilemma for allies of Indigenous peoples seeking a constitutionally entrenched Voice to the Australian Parliament which three past Coalition Prime Ministers (Mr Abbott, Mr Turnbull and Mr Morrison) have opposed:

We have a lot of work to do if there is to be any prospect of a successful referendum which can be said to be true towards Indigenous people, who have put to us the mode by which they want to be recognised in the Constitution. They have said they want a Voice. Now, we can debate whether it be a Voice to Parliament or a Voice to Parliament and government, or a Voice just about particular laws or a Voice about all manner of things. But Mr Howard seems to be saying that a Voice of any sort in the Constitution is not on. I dare say he hasn't lost all his political clout.

Another past Prime Minister, Labor’s Paul Keating, had only been in office for just some six months when one issue of fundamental significance to Indigenous peoples (in particular) landed in his in-tray. The High Court of Australia in June 1992 handed down the Mabo decision, recognising that the Murray Islanders of the Torres Strait were entitled ‘as against the whole world, to possession, occupation, use and enjoyment of the lands of the Murray Islands’.

A small team in the Department of Prime Minister and Cabinet was hastily put together to review the implications and advise the Government on a potential whole of Government response. The team was led by experienced and respected senior official, Sandy Hollway, previously Chief of Staff to Bob Hawke. Sandy was leading the response to the 339 recommendations of the Royal Commission into Aboriginal Deaths in Custody, the final one of which recommended a whole of nation effort on the process of reconciliation.

Just a few days after the decision, the PM asked Sandy to come up to the Prime Minister’s office for a personal briefing. Sandy knew that the PM liked to talk things through informally to get across a new and complex issue. Unfortunately, Sandy had come down with a bad case of laryngitis; he had lost his voice. As a middle level public servant in PM&C working on the reconciliation process at the time, I was tasked to accompany Sandy to verbally summarise the Department’s initial take on the policy implications of the decision. Sandy would save his voice for any questions the PM might have.

 

'The Prime Minister was not required by law, regulation, policy or practice to formally consult or negotiate with Indigenous peoples on the issue. The Aboriginal and Torres Strait Islander Commission of the time could be relegated to the margins of the policy making process.' 

 

The decades have eroded some of the (still confidential) details of the meeting in one of the Cabinet ante-rooms. In general terms, the briefing gave a quick recap of the decision: that the common law now recognised that Indigenous rights of ownership existed before non-Indigenous settlement; and may still exist where connection with land had been maintained and title not extinguished; and native title could have survived in on vacant crown land or land allocated for public purposes not inconsistent with native title. It was also possible that native title may have survived on some pastoral leases, marine reserves and offshore areas and rivers. The implications for property law, the mining and pastoral industries, and State and Territory Governments were significant. For Aboriginal and Torres Strait Islander Australians and the process of reconciliation, the decision and Government response was of course, massive. It was a ‘can of worms’ bureaucratically, legally and politically.

History tells us that over the rest of 1992 and all of 1993 Prime Minister Keating invested a huge amount of political capital into the Mabo policy and legislative process, designing the Native Title Act after extensive and detailed negotiations with Indigenous leaders and establishing a comprehensive social justice package for those whose land needs were great, but whose chances of claiming title may have been poor. The Mabo decision became a defining episode for Paul Keating and for the Australian nation.

The Prime Minister was not required by law, regulation, policy or practice to formally consult or negotiate with Indigenous peoples on the issue. The Aboriginal and Torres Strait Islander Commission of the time could be relegated to the margins of the policy making process. As debate intensifies on the Voice, it is a small irony to recall that PM Keating first discussed the policy response with a senior public servant who had lost his voice. Indigenous Australians should be afforded the right to offer their Voice, to be listened to, and be heard by Parliament and the Executive on issues as fundamental and significant as native title.

 

 

 


Kevin Keeffe is an Honorary Lecturer in Native Title Anthropology at the ANU.

Main image: Paul Keating delivering the 1992 'Redfern Speech', one of the ways his government sought to shape Australia's image. (National Archives of Australia)

Topic tags: Kevin Keeffe, Native Title, Keating, Mabo

 

 

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Existing comments

Since the advent of the Howard government particularly, no Australians have had a voice to parliament as far as any of the political parties are concerned. The electors who are subject to a fine for not exercising the "right to vote" are not heard on any issue that might affect them particularly if the issue is likely to make obscene profits for big business, or foreign interests that pay little or no tax in Australia. A voice for the Aboriginal people is long overdue. Once that is sorted out, perhaps we could look forward to seeing all non-indigenous Australians also given a voice to parliament, a situation originally envisaged as the ideal of democracy but abandoned by most of today's pork-barreling politicians, particularly in the Liberal/ National fold which I have faithfully supported since I got the right to vote but can no longer trust to represent me or any other of the powerless electors who support them. Sadly, there is no guarantee that the Labor Party will be any different in power with its kowtowing to the unions and foreign businessmen. Perhaps an informal vote is the best way to go. At least, we would be no worse off and would avoid the fine for refusing to vote. My doctor fortunately advises that I have avoided the dreaded dementia with aging!


John Frawley | 16 March 2023  
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Dare I say John that non-indigenous Australians were given their voice to Parliament when the Constitution was written and have had it ever since.

I suspect an informal vote would only achieve dissatisfaction on all sides.

I'm glad your doctor gave you the all-clear. I don't think it was ever in doubt.


Brett | 16 March 2023  

A resonant and strong voice is a powerful asset for any orator. And one of the best speeches made by a Prime Minister of this country, the Redfern speech by Paul Keating, continues to reveal the truth of invasion and dispossession and the truth of our history as broken and violent. Keating’s advisers when the Mabo decision was handed down had the opportunity to speak, even as laryngitis hindered one the advisers. A powerful orator for the Indigenous community is Noel Pearson and when he speaks I, for one, listen intently. We would do well to keep speaking in favour of a Voice for Indigenous Australians enshrined in our core document the Constitution. Nothing else will do.


Pam | 16 March 2023  

Lidia Thorpe is not the only First Nations activist who wants a Treaty rather than a Voice. Wayne Wharton, a respected Queensland First Nations leader and stakeholder is also of that opinion, as is Michael Mansell. I think this issue really needs to be nutted out in full, as it effects our collective communal future. I am a bit wary of the "top down" model here, which ignores grassroots input from all Australians. We need to look to the future.


Edward Fido | 16 March 2023  

“A voice for the Aboriginal people is long overdue. Once that is sorted out, perhaps we could look forward to seeing all non-indigenous Australians also given a voice to parliament …” John Frawley | 16 March 2023

All non-indigenous Australians already have a voice to parliament by virtue of their participation in the Colonial Project, from which indigenous people were, and continue to be, excluded by their dispossession.

If non-indigenous Australians feel unrepresented it’s not because they don’t have access but because they haven’t adequately engaged with the institutions of representation.

Non-indigenous Australians will learn much about how to user their voice when a legislated and operational Indigenous Voice to Parliament impels a paradigm shift in the identification and resolution of First Nations entitlement within the project of Australian nationhood.

Inspired by First Nations leadership in effective - because patient and morally justifiable - self organisation, people who, in any numbers, recognise a common unmet need, will engage with the nation and the Parliament in pursuit of a more just and sustainably diverse society, in contradistinction to the contest for undue advantage by lobby groups of the Colonial Project.

All will become beneficiaries of the principle and practice of self-determination, when Australians recognise that we are a nation of minorities and reject the false, colonial dichotomy between a non-indigenous majority and an indigenous minority.


Paul Smith | 16 March 2023  

“A voice for the Aboriginal people is long overdue. Once that is sorted out, perhaps we could look forward to seeing all non-indigenous Australians also given a voice to parliament …” John Frawley | 16 March 2023

All non-indigenous Australians already have a voice to parliament by virtue of their participation in the Colonial Project, from which indigenous people were, and continue to be, excluded by their dispossession.

If non-indigenous Australians feel unrepresented it’s not because they don’t have access but because they haven’t adequately engaged with the institutions of representation.

Non-indigenous Australians will learn much about how to user their voice when a legislated and operational Indigenous Voice to Parliament impels a paradigm shift in the identification and resolution of First Nations entitlement within the project of Australian nationhood.

Inspired by First Nations leadership in effective - because patient and morally justifiable - self organisation, people who, in any numbers, recognise a common unmet need, will engage with the nation and the Parliament in pursuit of a more just and sustainably diverse society, in contradistinction to the contest for undue advantage by lobby groups of the Colonial Project.

All will become beneficiaries of the principle and practice of self-determination, when Australians recognise that we are a nation of minorities and reject the false, colonial dichotomy between a non-indigenous majority and an indigenous minority. 


Paul Smith | 17 March 2023  

Kevin, Keating is still blundering in where angels fear to tread.
This I understand is the proposal on the Voice:
There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice.
The Aboriginal and Torres Strait Islander Voice may make representations to Parliament and the Executive Government on matters relating to Aboriginal and Torres Strait Islander peoples.
The Parliament shall, subject to this Constitution, have power to make laws with respect to the composition, functions, powers and procedures of the Aboriginal and Torres Strait Islander Voice.

Important though it is, I think a treaty with the Aboriginals and Torres Strait Islanders is more important.
So what benefits did the Treaty of Waitangi provide?

Ownership of land, recognition of their culture, languages, historical territorial rights, forestry's, treasures. Recognition of their right to regulate and discipline their own people. Fisheries and mining rights, the right not to be massacred and treated as an inferior species -"paternalism" (because the British thought they were a superior species). Paraphrasing, The automatic right to full Australian citizenship.
Added to that because of their historical disadvantages, the right to a free education to undergraduate level with the Fed Govt to provide free uniforms, transport and safe passage.


Francis Armstrong | 17 March 2023  
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Francis, thanks. Since there will be a referendum on this important issue of The Voice we will all have our say. Representatives of the Indigenous community have met at Uluru, they have made a Statement of the Heart, they have campaigned strongly for The Voice. Like in any community, there are differing opinions in the Indigenous community about The Voice. Noel Pearson said in a recent interview that this is a life’s work for him and for many others: to make the Indigenous voice heard.


Pam | 18 March 2023  

'have power to make laws with respect to the composition, functions, powers and procedures of the Aboriginal and Torres Strait Islander Voice'

Shouldn't there be a body called a Pre-Voice to advise the Parliament as to how to set up the Voice? How else would the Parliament know what Aborigines and Torres Strait Islanders want?


roy chen yee | 18 March 2023  
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Roy this is what has been published:
The Voice will be chosen by Aboriginal and
Torres Strait Islander people based on the wishes of local communities: The Voice would be a national group of about 20 members who are Aboriginal and Torres Strait Islander people. This body would be a balanced mix of genders, and include a Youth and Disability Advisory Group. (Nine News)
• Members of the Voice would be selected by Aboriginal and Torres Strait Islander communities, not appointed by the Executive Government.
• Members would serve on the Voice for a fixed period of time, to ensure regular accountability to their communities.
• To ensure cultural legitimacy, the way that members of the Voice are chosen would suit the wishes of local communities and would be determined through
the post-referendum process.
The Voice will be representative of Aboriginal and Torres Strait Islander communities, gender balanced and include youth
• Members of the Voice would be Aboriginal and/or Torres Strait Islander, according to the standard three part test.
• Members would be chosen from each of the states, territories and the Torres Strait Islands.
• The Voice would have specific remote representatives as well as representation for the mainland Torres Strait Islander population.
• The Voice will have balanced gender representation at the national level. (NIAA)


Francis Armstrong | 31 March 2023  

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