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PM Turnbull is cautious about embracing a proposal for a permanent First Nations voice in Parliament

Progress towards a treaty or treaties with Australia's First Nations is hampered by a number of other proposed national referenda, writes Ingrid Matthews.

IT WAS in a Radio National interview recorded at the Garma Festival that I heard Referendum Council co-chair Aunty Pat Anderson express irritation and frank frustration that referenda seem awfully current in Australian public debate all of a sudden.

The Council has presented its final report to the Prime Minister and Leader of the Opposition, both of whom were at Garma on Yolgnu country this year. Over its 19 years, Garma has grown in stature and significance, such that decisions of national importance are now discussed there by top political players. The ABC even staged a Q&A special on country. 

Iconic, remote-area visuals like the Uluru Convention and Yolgnu country for discussion on the unfinished business of colonialism are not without problems. Most politicians, media and the general public are not skilled in avoiding "who-are-the-real-Aborigines" judgements. This erases many people and devalues their identity. Like the rest of us, most First Peoples live in urban and regional areas.

So, most of us are watching from a distance — if at all. And it is not easy to stay in focus. To recap, the initial Recognise campaign received tens of millions of Federal dollars ($14.2 million in 2015-17) and has folded into irrelevancy. Meanwhile, First Peoples leadership on constitutional change moved mountains to shift the campaign away from its largely empty beginnings. Enormous work has gone into taking back the process from mere symbolism and putting a coherent proposition to the Federal leadership.

The proposal for a Voice to Parliament is not without its problems, either. To me, it is what it is not: a missed opportunity for Treaties between the Commonwealth and First Peoples. But the Voice is not proposed in a vacuum. Makaratta conceives of a truth-reaching process; and there is never a guarantee that treaties will not be broken. Colonising powers and contemporary nation states do not conscientiously observe agreements like Waitangi and the many North American treaties. Nevertheless, treaties hold status at international law and would enshrine First Peoples sovereignty — a decolonising step.

This work is clearly incomplete. It may never be complete. The current stage is with the Federal political leadership. And that leadership is an abyss, an abrogation, a travesty. It is into this leadership vacuum that the acrimonious and fractured public discourses have leapt. One result is the crowded field of referenda proposals noted by Aunty Pat Anderson.

First up is the despicable marriage equality plebisurvey, which puts equality before the law up for an optional postal ‘vote’. This government regularly lectures us on Rule of Law, which basically states that all are equal before the law and nobody is above it. It is deployed by Malcolm Turnbull to demonise union leaders, and to justify spurious and racist amendments to the Citizenship Act. Yet when it comes to marriage equality, Rule of Law is presented as an optional extra, to be determined by the tyranny of the majority.

Or minority. All we have so far is a dodgy directive from the Finance Minister which is subject to a High Court challenge. Nobody has quantified what will constitute a legitimate result. Is it 50 per cent plus one? Is there a minimum participation rate before the result is operationalised into Marriage Act amendments?

It is worth noting that we do not know what we are being surveyed on. The amending bill will not be released before the survey, but will almost certainly entrench religious bigotry – ‘exceptions’ which permit prescribed organisations to discriminate on grounds of sexuality.

Then there is the resurgent Australian Republican Movement. Now it delivers periodic headlines, like when its failed leader, Malcolm Turnbull, spoke at the 25th anniversary dinner. Its members could and should direct their considerable energy to the imperative of First Peoples justice and rights, which are not unrelated to republicanism. The English queen as our head of state is merely the most obvious colonial remnant in Australian law and society.

Finally, some people are seriously suggesting a referendum on s44 of the Australian Constitution. Why? It is not a matter of national interest if an MP did not do the required probity checks and is thus disqualified from sitting in Parliament. The circumstances are not unprecedented. Disqualified parliamentarians can renounce and re-contest, like Jackie Kelly. Resign, like Scott Ludlam. Play games while collecting our coin, like Tony Abbott. Bluster on, like Barnaby Joyce.

Despite the Deputy Prime Minister acting as though he is above the law and thereby demonstrating as feeble a grasp of Rule of Law as the bigots who barfed up the plebisurvey, there is no case for a referendum. We have a means for dealing with constitutional questions. The High Court can and will decide on Joyce’s eligibility to sit in the Australian Parliament.

All this chatter is crowding out the existential issue. Without First Peoples justice and rights, the legitimacy of the nation state remains shaky at best. Deep down, White Australia knows this. Much of multicultural Australia probably does too, given how aggressively we indoctrinate non-white migrants into our dishonest beliefs and practices. Witness the conservative overreach on rejecting January 26 as our national day. Our Government threatens to withdraw Commonwealth funding from councils that do not comply. Why? Because new Australians must be co-opted into our white nationalist nonsense.

But it would not be Australian public debate if we did not sabotage, consciously or otherwise, the monumental intellectual effort and broad perception of Black unity on righting past wrongs. This is not new.

Remember the 2008 Apology to the Stolen Generations? Remember how many apologies to lost and abandoned and adopted children followed in its wake? Of course, all victims of forced adoption deserve recognition and there are undoubtedly many excellent adoptive parents. I do not intend to erase any experience or person here.

The point is this: the Stolen Generations loved their families so much, they struggled for decades to tell their stories, to establish the National Inquiry, to prove harms done in the courts, to be reunited with kin and country, to recover cultural identity. Fast forward ten years and we get a religious bigot like Lyle Shelton invoking the Stolen Generations to imply that children of same-sex parents are unloved and at risk. In response, Penny Wong erased the fact that Stolen Generations were forcibly taken from families who love their children too.

There could not be a worse recipe for damaging debate than a postal survey on equality before the law tasked to the Australian Bureau of Statistics. This agency recently failed at its core function, the Census. This is the same core function in which First Peoples were first included, by referendum, a mere 50 years ago. And that 50 year anniversary was supposed to set the timetable to recognise First Peoples by referendum in 2017, which has not and will not happen.

This conglomerate of damaging failures has emerged from an ocean of political weakness, immoral compromise, and homophobic hostility. The leadership vacuum is palpable and the leader’s position is terminal.

Ingrid Matthews is a sessional academic who teaches law and human rights. You can follow Ingrid on Twitter at @iMusing or her blog oecomuse

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