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"Race" and the Voice to Parliament

Background to The Voice

On the 14th of October, Australians have been asked to make an alteration to their Constitution to establish a body known as the Aboriginal and Torres Strait Islander Voice as follows:

In recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia:

i. there shall be a body, to be called the Aboriginal and Torres Strait Islander Voice;
ii. the Aboriginal and Torres Strait Islander Voice may make representations to the Parliament and the Executive Government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples;
iii. the Parliament shall, subject to this Constitution, have power to make laws with respect to matters relating to the Aboriginal and Torres Strait Islander Voice, including its composition, functions, powers and procedures.

The proposal for the Voice has a long history; eight years previously, as then Prime Minister Tony Abbott was considering constitutional recognition for ATSI people, Indigenous representatives argued than symbolic recognition was required. Noel Pearson, now a chief advocate of the Voice suggested a committee made of up Indigenous representatives to be able to review legislation that affects Aboriginal and Torres Strait Islander people. "I'm proposing an alternative, that on some views is a higher alternative, in that it gives our people an active say in the laws that affect us, rather than a High Court adjudicated provision".

It was in May 2017 that 250 First Nations Representatives made a formal call for an Aboriginal and Torres Strait Islander Voice through The Uluru Statement from the Heart: "We call for the establishment of a First Nations Voice enshrined in the Constitution". This was taken into consideration by the Joint Select Committee on Constitutional Recognition whose final report in 2018 also recommended the Voice. On March 23, the Prime Minister announced the constitutional amendment and question.

At that stage, the Voice was estimated to have over 65% support. Since then, opinion polls suggest it is heading to defeat which would, to put it mildly, be an international embarrassment for the country. To a very large extent, this was due to the decision of the Liberal Party to oppose the Voice, which has turned it into a politically-partisan debate. The "No" campaign, organised by conservative religious fundamenatlists, with a three-part strategy: Firstly, to run parallel campaigns that the Voice is risky and dangerous at the same time that it doesn't go far enough. Secondly, to muddy the political discourse so that the referendum question is not actually discussed and everything else is raised, and thirdly, to argue against division based on "race". It is this third part that is addressed here.

Racial Categorisation

Australia's indigenous population, even in the legal sense (putting aside cultural discrimination, extra-judicial violence, rapes, and murders), have had racial policies applied to them. The original 1901 Constitution of Australia referred to Aboriginal people twice with Section 51(xxvi) giving the Commonwealth parliament the power to legislate with respect to "the people of any race" throughout the Commonwealth, except for people of "the aboriginal race" and Section 127, that provided that "aboriginal natives shall not be counted" in reckoning the size of the population; these references were removed by the 1967 referendum. State governments had their own laws of course, and it is through these prominent abusive practices occured, well documented through publications like the "Stolen Generation" (1997) report. The racial profiling employed has been described as follows:

The phrase Stolen Generation refers to the countless number of Aboriginal and Torres Strait Islander children who were forcibly removed from their families under government policy and direction. This was an active policy during the period from the 1910s into the 1970s, and arguably still continues today under the banner of child protection. It is estimated that during the active period of the policy, between 1 in 10 and 1 in 3 Indigenous children were removed from their families and communities.

The removal of Indigenous children was rationalised by various governments by claiming that it was for their protection and would save them from a life of neglect. A further justification used by the government of the day was that it was believed that "Pure Blood" Aboriginal people would die out and that the "Mixed Blood" children would be able to assimilate into society much easier, this being based on the premise that Aboriginal and Torres Strait Islander peoples were racially inferior to people with Caucasian background.

As with elsewhere around the world, "race" was a pseudo-scientific justification for social oppression. One "race", typically (but not exclusively) those represented by one of the nation-states of Europe or the United States, would engage in colonisation and subject indigenous populations to the law of the invader, with reduced legal rights at best, to complete dehumanisation at worst (slavery, extermination). Even in the coloniser countries, they would engage in destructive wars - such as the World Wars - to establish the superiority of one race over another, with the economic benefits of land, resources, and labour to the victor. With the vernacular at the time, it is unsurprising that the liberal-minded argued for "racial equality", whereas those subject to racially motivation subjugation would, as an act of resistance, often identify and appropriate the race that had been assigned to them (e.g., "Black Power"). As much as such an inversion may seem to undermine the power relation, adopting the concepts of the oppressor does not provide a path to liberation which always requires transcending [Aufhubung] racial concepts.

From Race to Nations

As scientific knowledge has increased with specificity the concept of "race" has fallen out of the scientific discourse. Mappings of of mitochondrial haplogroups suggest clines and clades of the human species rather than discrete races, which in turn allow for greater intelligence of human migrations, such as recognition that the populations of Aboriginal Australians and New Guineans began to diverge some 30KYA. Human occupation in Australia, according to contemporary archeological evidence, is estimated at 65KYA.

As various earlier, and non-constitutional, versions of the Voice were introduced to the Australian body-politic, an issue arose of how membership to an aboriginal group would be defined, of which the Australian Law Reform Commission provides a useful summary. In the past, no less than 67 definitions have been applied, many of these suggesting some "quantity of blood". The working definition which developed in the 1980s and which largely continues today, is a three-part test that depends on descent, identity, and community acceptance. However, given that "descent" is often difficult to prove, self-identity and community acceptance is considered probative, with Merkel J noting: "the notion of ‘some’ descent is a technical rather than a real criterion for identity, which after all in this day and age, is accepted as a social, rather than a genetic, construct."

It is perhaps even more accurate to use the term "moiety", rather than "descent", as this represents kinship relations and noting, of course, that this gives the flexibility of the many and various First Nations of Australia to determine for themselves in according to their own lore, on who is, and who is not, an indigenous person. Thus the three-part test would be "moiety" and "idenitity" and "community acceptance", with "and" representing a logical operator uniting all three. This, of course, implies that people without a genetic relationship could become a member of a First Nations group, which concurs with a few examples in history. There is the famous historical example of William Buckley, who was adopted into the Wallarranga people and whose name itself has become an idiomatic Australian saying. Others would include James Morrill who was accepted into the Biri Gubba people, and Narcisse Pelletier who joined the Uutaalnganu. All of these people, of European genetic descent became First Nations people. As a contemporary example that is perhaps even more tragic, Thomas Mayo whose father, despite being of Dayak ancestry, found himself born and placed under the Aboriginals Preservation and Protection Act 1939 (Qld).

Ultimately it is the self-determination of cultures who have the capability to determine who is a First Nations person. Notably, with regard to the proposed Voice, the Constitutional amendment does not propose "race" (such as empowered in Section 51(xxvi) of the constitution, but rather speaks of "First Peoples". As the First Nations portfolio of the Australian National University says:

"Most importantly, there is no such thing as ‘race’. Scientists that have mapped the human genome have found there is no basis in the genetic code for race. Race is a social construct. This emphasises again that the Voice reflects the inherent rights Aboriginal and Torres Strait Islander peoples hold as the original inhabitants of the Australian continent. It is not based on race."

Or, as the former High Court chief justice Robert French said the amendment would be “a significant shift away from the existing race-based legislative power that the commonwealth has with respect to Aboriginal and Torres Strait Islander people”, a point which concurs with Professor George Williams, constitutional lawyer and the Deputy Vice-Chancellor of Planning and Assurance at the University of New South Wales: "I think the whole race issue is a complete misnomer. Race is a 19th-century concept that has no longer any scientific credibility attached to it. A group has been identified because they’re a unique group within our community."

Whilst the "no campaign" has made a significant point of claiming that the proposed Voice amendment is about dividing the country by "race", it is actually doing the very opposite. It is removing the concept of race from the constitution and instead noting that the country does include a number of First Nations cultures and providing them the right of self-determination. Regardless of the outcome of the vote, this is a significant step forward in a legal system that has fallen behind the scientific reality of our time. It is unfortunate that the opportunity was not taken to remove Section 51(xxvi) simultaneously and provide additional clarity to this debate.


We might have seen the High Court make an interesting further refinement of this definition if the Albanese Government had not chosen to drop the Home Affairs portfolio’s challenge to the Federal Court’s ruling in the case of Shayne Montgomery: a New Zealander who had no biological descent from Indigenous people but who had been adopted and initiated by the Mununjali community in Brisbane, which the Federal Court ruled put him in the same category as two biologically Indigenous people without Australian citizenship whom the High Court had ruled could not be deported because Indigenous people are “ab origine” (by definition, belonging to Australia from its origins as a place inhabited by humans).

However, the Montgomery case raises the possibility of the biological requirement being bypassed in future in favour of, say, a process of initiation: which would be consistent with some historical evidence from the early colonial period which reports people fleeing from one Indigenous community being permitted to become initiates of another community and also some instances of escaped convicts being so initiated.


See also::
High Court summary
Guardian article on bid to overturn dropped