Email to Kamahl explaining the Voice is not divisive and that $40 billion is not spent

Dear Kamahl

I was disappointed following our meeting to hear of your change of mind. I would like to ask where the information you are accessing is coming from and if you are willing to share it so that I might better provide advice.

I watched your appearance on The Project and disagreed with the reasons you gave. I note however you have taken issue with the way the interview was presented. I have also since seen your Tweet claiming you are correct about the $40 billion and that the Voice is divisive.

I have attempted to address the issues you have raised publicly and in conversation with me below. Those being that the Voice is racist and or divisive and that $40 billion is spent on Indigenous people.

I believe you are misinformed on both. I understand it would be easy to dismiss my opinion otherwise. I have provided links to sources where appropriate. I should note however that I am an expert in Indigenous affairs, but I do also have a personal interest as I explained to you when we met. I am dedicated, personally, to the Voice and a successful referendum because of my grandmother who will be 93 this year and both of my children, Arthur who is 3 years old and Alfred who is 7 months. I want my nan to see in her lifetime what was stripped from her and denied, and I don’t want my children having to fight so hard for their recognition and ability to drive change in 30 years’ time.

We can and should be doing better.

While I do belong to the Uluru Dialogue that is one of the groups advocating for a Yes vote, I do so because I am a constitutional law expert and an expert more broadly in Indigenous affairs with academic appointments at the Griffith Law School, Griffith University in Brisbane and at the Indigenous Law Centre, UNSW Sydney in Sydney.

As you noted in our meeting – heart and mind, and for me I am committed entirely through both.

I have been part of the team over the past six years that has developed the Voice model and has been working toward this referendum. As I have mentioned to you, I am more than happy to answer your questions. When you say there must be a better way forward it is important for me to note that the Voice is the result of decades of careful work and advocacy by the Indigenous community. Some will say this is not true, others will claim not all agree – but that is what democracy is about, and the overwhelming majority of the Indigenous community do agree with and support the Voice (you can find out more at our website UluruStatement.org).

And my apologies you have received abuse and criticism. I wish it wasn’t like this either, but I will never apologise for advocating for a better future and recognition for my people and for our country. Too many others have taken this as an opportunity to execute political arguments and games rather than do something substantive for this country and our people. I hope that through some of this information you can see that.

• Claims the Voice is racist and divisive

The Voice debate has become divisive.

But that, in my opinion, is not because of the Voice itself, or because of Indigenous claims – how could Indigenous people themselves advocating for the recognition and protection of our rights and issues be divisive in and of itself? I really struggle to accept this other than for what it reveals about those opposing that claim and calling it divisive (more broadly here, the official No campaign).  

This advocacy does not mean we are not Australian or that we do not want to be Australian, or that we want to drive a division – but it does mean we want our legitimate history, rights and issues as Indigenous people recognised and celebrated as part of what makes Australia what it is, that we want real change.

In my opinion, division is being caused because people, including the Coalition and others in the formal No campaign, have decided to oppose the Voice and make it a divisive issue for their political gain. We discussed the nature of politicians and their reasons when we met – I should say as far as I am concerned this applies to politicians of all stirpes.

I should note however this is not and should never have been made a partisan political issue – prominent members of the current Coalition Opposition support the Voice including Julian Leeser (here), Bridget Archer (here), Andrew Bragg (here) and Andrew Gee (here), along with former Prime Minister Malcolm Turnbull (here), former Leader of the Liberals John Hewson (here), and four former Liberal Indigenous Affairs Ministers including Ken Wyatt (here), Fred Cheney, Ian Viner and Peter Baume (here). The current NSW Liberal Party and Opposition Leader Mark Speakman (here) also supports the Voice, as do former Liberal Premiers of NSW including Barry O’Farrel (here), Gladys Berejiklian (here) and Mike Baird (here) among many others.

The argument the Voice is divisive is coming from those opposed to it, opposed for multiple reasons that are not entirely clear but include personal political gain. This notably includes the likes of Pauline Hanson among many others. The truth however is far from this.

The Voice is about overcoming 235 years (since 1788, the arrival of the First Fleet) of racism and division by recognising the place, rights and interests of Aboriginal and Torres Strait Islander peoples as the Indigenous people of Australia by providing them a say on the decisions made about them. That is it. It doesn’t cause inequality, it doesn’t provide additional rights, it doesn’t take anything away, it doesn’t change the makeup of parliament or the value of our vote. It simply recognises a fact of our history and existence, recognises the rights of Indigenous people which have been ignored for too long, and enables Indigenous people to be heard on the decisions made about them – nothing more, no separate laws.

The Voice very simply will be an independent, but constitutionally protected, advisory body in recognition of Indigenous people. It must be protected because government has a habit of ignoring Indigenous people and removing mechanisms for our voices to be heard when they don’t agree with us. That does not make for a healthy relationship. We need a mechanism to negotiate – not to be ignored. The Voice provides the long overdue recognition that is much needed but also provides Indigenous people a say on the decisions that are uniquely made about us. Government decisions uniquely impact us because of our status as Indigenous people and because of the entrenched inequality and disadvantage that too many Indigenous people continue to face because of continued failed policies to make change.

With regard to race more specifically, the Voice simply is not based on “race”. Race is a myth, confused and conflated with ethnicity and culture, that has been used to oppress and negatively target others as you well understand from your own history of experience. Race and racism have been used since 1788 to deny the rights, interests and issues of Indigenous people in Australia. This was originally because the British claimed that Indigenous people were an inferior race and did not have an interest in their land or property. These attitudes set in motion a series of generational policies and actions that continue to impact Indigenous people today and have set generations of Indigenous people back. This was somewhat rectified by the landmark Mabo judgment in 1992 that recognised the ongoing native title rights of Indigenous people, but this was only very limitedly about property rights. We have made other strides with positive polices to support Indigenous people and change Australian attitudes, but much more remains to be done. Those arguing the Voice is race based and racist would use race and racism to deny Indigenous people again as they did in 1788. This is wrong in principle and fact.

There are those that continue to claim the Voice is based on race however and that it would insert “race” into our constitution. One such person that has made this claim is Australian Human Rights Commissioner Lorraine Finlay. This has been challenged by many, many more experts, including five former Human Rights Commissioners that include Brian Burdekin, Chris Sidoti, Graeme Innes, Catherine Branson and Edward Santow (here). The Constitution already mentions race – because of our racist history (the White Australia Policy) and because of the Race Power (s 51(26)) that enables the Commonwealth to make laws based on race (amended in 1967 to include Indigenous people within its scope).

Further to this, the Voice and Indigenous recognition is not based on “race”, it is based on the fact Indigenous peoples are political and cultural entities and that we have unique rights and interests as Indigenous people. The only thing causing division here is the continued denial of these rights and issues and for the simple ability for our voices to be heard. The Voice is about unity – it is about setting our course toward a better future in recognition of our history, of our unique rights and interests. Voting No means accepting the status quo. Chin Tan, Australia’s Race Discrimination Commissioner made this point very clearly where he wrote that the Voice would lead to less inequality and that is not racist (here).

There is another point more broadly here about “equality”. Some have argued the Voice gives more rights to some citizens over others and therefore causes inequality. I disagree with this too, as do most experts. That is for several reasons. Firstly, we are not dealing with “citizenship rights”. We are dealing the legitimate rights, issues, and interests of Indigenous people, which exist and are recognised in international law, but that Australia has not done a good job of recognising and protecting because of our history of denial and exclusion. Further, equality doesn’t simply mean treating everyone the same and ignoring their real, legitimate differences. That is not equality. Equality means meeting people where they are. Equality means extending the rule of law and its protection to Indigenous rights, interests, and issues where it has been denied before.

Again, I ask you, please consider why those who claim the Voice is divisive are making the claim they are. What do they mean? How could it be divisive? How divisive is it to say no to Indigenous people and to continue to deny Indigenous Australians?

• That $40 billion is spent on Indigenous people, Indigenous programs or is given to Indigenous people

I note you have doubled down on this claim after The Project and have since Tweeted about it. We discussed this in our meeting also, albeit we did not get much of a chance to go back and forth. I would like to know, if you’re willing to share, where this information is coming from. It is simply incorrect. I will address why that is below and provide sources. My apologies for the technical nature of this information.

But first a point on this. The Voice is about driving accountability and transparency in government decision making and program delivery. We know that approximately only 27% of the funding, whether that is $40 billion or not, hits the ground where it is needed. This is unacceptable. That’s why we want the Voice! Independent community representation that can’t be shut up. People say we can use the “normal channels” – we have been! And this is the result. Failure. Our relationship must change, the nature of it matters to the kind of decisions being made.

So now for the $40 billion claim.

This figure is actually very hard to pin down. The figure most keep quoting is actually from an old Indigenous Expenditure Report done in 2017 (here) that cited older data. There is not a more recent report. That report notes the figure is an estimate only and it describes how it estimates that funding and the difficulties doing so. The Productivity Commission does so by looking at “Indigenous specific expenditure” which is funding specifically for Indigenous programs, and “share of mainstream expenditure” that Indigenous people access also. The Productivity Commission then add these two figures together to produce a total amount. As you can already see from this explanation – the claim a certain amount is simply spent on, or given to, Indigenous people is incorrect.

The estimate for 2015-2016 (as I said, old data) of the total figure was $33.4 billion.

That figure includes $6 billion on “Indigenous specific expenditure” and $27.4 billion on “mainstream expenditure”. This amounts to a higher per person expenditure on Indigenous people than non-Indigenous people because, according to the Productivity Commission, of the “intensity of service use” and the “higher cost of providing services” for Indigenous people. But these are services that all Australian citizens access and are entitled to by right (hospitals, medical, police, community, infrastructure, anything you can think of).

So, what that means is due to the demographic and social issues, such as entrenched poverty and inequality, over-representation in prison, and so on, Indigenous people are more likely to access mainstream services. This is a reason for the Voice, not against it. We want accountability and transparency; we want to change this so less money is spent because those issues would eventually not exist; we want efficiency and change; we want a future where our people are not accessing those services at those rates for those reasons. But I must be very clear – that money is spent on Australian citizens accessing mainstream services, who also happen to be Indigenous.

A recent note from the Australian Parliamentary Library from the 2023-24 budget (here) provides an updated view of this. It tells us:

• “Notwithstanding the significant budget commitments, total Commonwealth Indigenous-specific expenditure in portfolio budget statement (PBS) programs appears similar to the previous (October) 2022–23 budget year (approximately $5.36 billion – see Figure 1 below), not including funding for the Australian Electoral Commission to conduct the referendum.”

And what does this tell us?

Not much other than the direct, “Indigenous” programs funded by the Commonwealth are around the $5.36 billion mark in 2023-24, and we do not have a total, all of government (including the Commonwealth, states and territories) figure for 2023-24. That doesn’t make the claim otherwise true however as I have shown above funding is not provided to Indigenous people – it is taken up or expended by us accessing mainstream services like any other Australian citizen.

Some have gone further and claimed that the National Indigenous Australians Agency (the Commonwealth’s Department of Indigenous Affairs) spends that $30 billion or $40 billion themselves every year. This is false also. You can read a fact check on that here.

There is a problem with corruption and waste. Some minor issues exist in our communities, but most of it, most of the waste and mismanagement, is at the hands of government. It is exactly why we want the Voice – to hold them to account and for our communities to be heard. An example of this is the Indigenous Advancement Strategy under the last government, it was first introduced in 2014 under then Prime Minister Tony Abbott. This was the program responsible for Indigenous affairs specific funding. It was a failure. A report by the Australian National Audit Office in 2017 (here) found the following:

• “the department did not effectively implement the Strategy”

• “The department’s grants administration processes fell short of the standard required to effectively manage a billion dollars of Commonwealth resources.”

• “The basis by which projects were recommended to the Minister was not clear and, as a result, limited assurance is available that the projects funded support the department’s desired outcomes.”

• “The department did not maintain sufficient records throughout the assessment and decision-making process.”

• “The review of applications identified 300 missing applications that the department had received but not registered for assessment.”

• “ANAO analysis shows that some projects that were awarded a high score against the selection criteria and need score were not recommended for funding, and some low-scoring applicants were recommended. For example, 59 projects that were awarded assessment scores of 20 or below and a need score of 3 or less were recommended for funding. Further, 222 projects that were awarded assessment scores of 26 or above, and a need score of six or above were not recommended for funding.”

This is a clear example of the waste and mismanagement, and why the funding doesn’t get to where it is needed, and why we want the Voice! To drive accountability and transparency.

Not only were these things happening, and still do, but the Government was giving funding that was supposed to go toward driving change in Indigenous communities to non-Indigenous interests and people. This included Minister Nigel Scullion giving $150,000 from the Indigenous Advancement Strategy to the NT Seafood Council so they could fight against an Indigenous land claim (here). Again, the waste and failure isn’t at our end!

One of the groups pushing this claim is Fair Australia, the official No campaign. They do so in an online article here and here. Fair Australia is supported by far-right Christian groups in the USA and are attached to Trump campaign groups. This should give you concern already about the accuracy of their information. You can read more about them here.

 Among Fair Australia’s claims are: 

• “Do we really need this divisive Voice when we're already pouring a fortune into Indigenous communities?”

• “FACT: Taxpayers spend at least $100 million a day on direct support for Indigenous Australians.”

• “That’s $39.5 billion of direct government expenditure a year.”

• “That’s more than we spend on the NDIS ($35.5 billion), Medicare ($31.3 billion) or defence ($38 billion).”

• “It’s about the same as the Federal Government’s entire spend on schools and universities ($39.7 billion).”

None of this is correct or factual, and where it does rely on some truth it is used to distort that truth and spread misinformation.

Take the $40 billion figure they claim (or $39.5 billion here). That is the figure from 2017 I discussed above of $33.4 billion that they have adjusted for inflation. It is a myth. As I addressed above it doesn’t go to services or communities as they have suggested, and the best way to drive change to spend less is through accountability and transparency through the Voice. The other figures they claim are simply false – such as the defence budget being smaller. It’s not. The 2023-24 budget papers show the defence department appropriation to be at $51 billion (here). This is just one example.

Again, these are distractions from the fundamental issue to sow doubt, confusion, and discomfort so that people will vote No. That is all. Fair Australia belongs to another group called Advance Australia. They were established to bring Trump style politics to Australia and fight what they call “woke” agendas. None of this is about what is best for our people or for our future. It is about their personal political gain and power.

I hope you have been able to read this and digest. Please reach out to me with any further questions.

Kind Regards

Eddie

Submission in response to the Interim Voice Report

My personal submission in response to the Interim Voice Report on the Co-Design of a First Nations Voice.

Eddie Synot 

edward.synot@gmail.com

Voice Secretariat 

Reply Paid 83380

Canberra ACT 2602

Submitted online

29 April 2021

Submission in response to the Interim Voice Report

Thank you for the opportunity to make a submission in response to the Interim Voice Report. I make the following submission in my personal capacity as a Wamba Wamba First Nations public lawyer, researcher and community member.[1]

I am also a Research Associate at the Indigenous Law Centre, UNSW and a postgraduate researcher at Griffith Law School, Griffith University. I have followed constitutional reform closely for the past decade. Indigenous peoples and the law more broadly form the basis of my research expertise and scholarship.

1.          Preliminary comments on the voice co-design process 

I appreciate the work of the Senior Advisory Group, the National Co-Design Group and the Local & Regional Co-Design Group in preparing the Interim Voice Report. I am also thankful for the opportunity to make a submission in response to the Interim Voice Report. I must note at the outset however my extreme disappointment at the design process, the models put forward for a First Nations Voice and the subsequent consultation process that has taken place. 

I believe that none of these processes have been empowering of First Nations nor have they appropriately addressed the desperate need for reform in a meaningful way that would bring about real, empowering change. Rather we have experienced yet another Government led process select its own membership and develop, in secret, models for a First Nations Voice that are supposed to represent us and our communities.

These processes, as evidenced by the models put forward, have too narrowly focused on affirming existing structures without appreciating fully the problems with those structures and their role in our continued disadvantage. The process has furthermore been too focused on government and bureaucracy at the expense of our own communities – an example of this is the fact that state and territory representatives were consulted and had input into the design process when our own people have not.

What has eventuated is the very species of law reform that the First Nations Voice is intended to overcome. No amount of limited consultation after the fact of design can cover that over.[2] The original intention of the First Nations Voice – for structural reform that is different to existing structures while empowering and representative of First Nations – necessarily stems from the Uluru Statement from the Heart and the Final Report of the Referendum Council. The Uluru Statement’s sequenced reforms of a First Nations Voice to parliament protected by the Constitution and a Makarrata Commission to supervise agreement-making and truth-telling are the standard by which reform must be assessed. This includes constitutional enshrinement of a First Nations Voice. 

This process has not met the standard of reform set by the Uluru Statement. This is evidenced by many aspects of the Interim Voice Report but is especially clear in the fact that the terms of reference for the co-design process prohibited discussion of constitutional enshrinement and the Uluru Statement. Furthermore, co-design members have repeatedly distanced the co-design process from the Uluru Statement and constitutional enshrinement. This has included noting the co-design process is being conducted in response to Recommendation 1 of the Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples (‘the Joint Select Committee’) that recommended more design work on a First Nations Voice be undertaken. Despite this, however, the Joint Select Committee was called in response to the Uluru Statement and further recommended that the decision on the legal form of a First Nations Voice be made following the design process. 

While it is encouraging that members of the co-design groups have more recently emphasised this staged process, the centrality of constitutional protection to matters of design must be emphasised rather than being dismissed as a matter concerning mere words or simply the legal form of a First Nations Voice. As outlined in the Public Lawyers Submission, constitutional protection of a First Nations Voice cannot reasonably be separated from design if the proposed model is to achieve the stated aims of the Interim Voice Report. The intent of the First Nations Voice necessarily takes the voice model within the remit of the Constitution as it deals with key institutions (parliament and government) and functions that are enumerated by the Constitution. Not centring the importance of constitutional enshrinement in the design of a First Nations Voice limits the potential of reform to meaningfully address the stated aims within the Interim Voice Report and the original intent of the First Nations Voice as informed by the Uluru Statement. 

There have been further issues with the consultation process. While the time extension for public submissions was welcome, the process has otherwise been inappropriately truncated and complicated and has not provided for meaningful engagement with the community, especially with First Nations. The Interim Voice Report itself is 240 pages of complex information. Further to this there are six videos, eight general documents, six ‘Local and Regional Voice’ documents, nine ‘National Voice’ documents, three ‘Terms of Reference’ documents and three ‘Communiques’. There is an avalanche of complicated information that is impossible for our communities to appropriately understand and reflect upon in the time provided, let alone in the 1.5-to-3.5-hour consultations. Further to this, none of the consultations involve First Nations in the actual design of the voice; rather the opportunity is to provide limited commentary on already designed models. 

In consideration of the above issues with the co-design process I make the following recommendations: 

 (1)   Now that a model, regardless of its form, has been canvassed, the Government should move to introduce legislation for a referendum to establish a First Nations Voice to parliament protected by the Constitution.[3]

(2)   Following a successful referendum, another process must be conducted to appropriately engage and consult First Nations in the design of a First Nations Voice to parliament.[4]

2.          The importance of constitutional enshrinement on design and legal form 

I support a First Nations Voice to parliament that is protected by the Constitution. As noted above, the constitutional enshrinement of a First Nations Voice to parliament is not only a matter for the legal form of the voice but is also centrally relevant to the design of the voice including its form and internal mechanisms and its relationships with other constitutionally enumerated institutions. This is because the proposed models necessarily take the First Nations Voice within the remit of the Constitution and because for the voice to have the intended effect of substantive and meaningful reform then the impact and benefit of constitutional enshrinement must be fully appreciated.

There appears a failure to appreciate what exactly the First Nations Voice is and what informed the call for this substantive reform including the circumstance of the relationship between First Nations and other Australians. This is evidenced by the fact that this co-design process has been focused on the familiar and narrowly informed public policy practice of overcoming disadvantage through practical solutions such as that which we have become accustomed to under closing the gap and the recently negotiated and subsequently ignored agreement with the Coalition of Peaks.[5]Through these processes the Commonwealth has ignored the other essential part of First Nations’ claims – that is for the beginning of a meaningful settlement between our peoples that recognises and enforces our rights as First Nations.

First Nations people have political and cultural rights that have been poorly recognised in Australia. We had them when the relationship first began, despite practice otherwise, and we continue to hold them today despite the failure of the Australian state and its predecessors to enter into any formal agreement or recognition of those rights. These rights, to various degrees, now exist as a matter of fact in our common and statutory laws but are recognised domestically only because of ad-hoc and limited changes (Mabo v Queensland (No 2), Racial Discrimination Act 1975 (Cth), Aboriginal Land Rights Act (Northern Territory) 1976 (Cth), Love v Commonwealth etc).

Rather than meaningfully engage with First Nations rights, racism has been the lasting legacy of Australian constitutionalism with respect to First Nations. From originally being excluded to now having laws made about us through the ‘race power’ (s 51(xxvi)), the Australian state lacks an appropriate constitutional mechanism to meaningfully engage and deal with (1) our rights and claims as First Nations people which are constitutional in their nature and (2) address our comparative disadvantage through law reform and public policy. 

Two of the persistent myths that contribute to a failure to overcome this challenge are (1) that Indigenous peoples and rights are just like the rights of any other Australian citizen or minority group and that (2) practical and symbolic reform are antithetical to one another. 

On the second, symbolic reform alone is of no use – this is one of the main reasons why the previous Recognise campaign was rejected by the community, as have other minimal reforms. Symbolic and practical reform together however are precisely the kind of meaningful reform which would result from a First Nations Voice to parliament protected by the Constitution existing at the meaningful intersection of the symbolic and practical. This reform would provide the necessary sutural changes required to answer First Nations claims and would refound the relationship between First Nations and other Australians. It would further enable the necessary structural reforms for the proper inclusion and consultation of First Nations in decisions that affect them.

3.          A First Nations Voice to Parliament 

There is a real and significant difference between parliament and government. At first instance the co-design process was based on a voice to government, not parliament, and the role of government and bureaucracy continued to be emphasised. The Interim Voice Report now canvasses both institutions being connected to the First Nations Voice but there is a worrying emphasis on government and bureaucracy over parliament and a failure to fully appreciate the power and authority of parliament as an important institution for the First Nations Voice to make representations to. 

The First Nations Voice as intended is also about providing authority, legitimacy and durability to a refounded relationship between First Nations and the Australian state and the policy environment of Indigenous affairs. Parliament is the institution that holds the authority and legitimacy of the constitutional foundation of the Australian state and where the Australian people are represented. Furthermore, government is accountable to and made up from the parliament. Despite developments in the power of executive government and the business of bureaucracy, parliament remains the representative and authoritative seat of power for the Australian state. The fact that the co-design process has emphasised the role of government, bureaucracy and existing structures over greater reform is further evidence of the failure to fully comprehend the call for reform from the Uluru Statement and the problems with the existing structures and public policy environment. 

The transparency, accountability and authority that a First Nations Voice requires to be meaningful would be achieved by ensuring its relationship to parliament. Maintaining the existing and arbitrary vicissitudes of government and bureaucracy as being central to the First Nations Voice, or rather building that voice based on existing structures and enhancing Indigenous participation within those structures, is a failure of reform. Once again, this inappropriately focuses the issues on simplistic understandings of practical solutions and service delivery, does not understand that current structures and organisations themselves form large part of the existing problem with the failure of practical solutions and service delivery and finally mischaracterises Indigenous claims as simply wanting more inclusion. 

As such, my further recommendation is:

(3)   That the First Nations Voice, as empowered by a constitutional provision, must be to parliament. That is the voice’s primary institutional relationship must be to parliament; but it must also have appropriate resources and mechanisms to engage directly with the government and bureaucracy when required. This relationship to parliament should not be controlled or under the authority of government or any designated responsible minister. Rather, the First Nations Voice should be free, on its own self-determining basis, to decide when and on what topics it will engage with the parliament. 

4.          The Interim Voice Report and proposed voice models

I have not made extensive comment on the overall design elements of the Interim Voice Report. As noted above I believe another process is required following a successful referendum in order to enable a proper and empowering design process be undertaken that involves First Nations themselves in the actual design process. 

I have picked out two broad issues however that I believe are reflective of many problems with the proposed designs. The first being that there will be no new extensive funding and the second being that regional and local voices would not be able to elevate specific local issues to the national voice and they would rather be quarantined to the local level. 

It is ridiculous to expect meaningful reform in this space to be achieved without serious investment of new resources. This is absolutely needed if meaningful and lasting reforms are to take place. It is unfortunate to see discussions of limited resourcing already being front and centre of the design process. This was a common tactic used to disempower the former Aboriginal and Torres Strait Islander Commission (‘ATSIC’) and to limit the political power and authority of First Nations. 

If the Australian state is to appropriately recognise the rightful place of First Nations through these structural reforms, then it must also be committed to a fair resourcing of these reforms, especially one that is willing to contribute permanently to the future settlement of First Nations claims. The Commonwealth absolutely has a central role to play in this respect not only due to the fiscal imbalance within the Federation that exists to the Commonwealth’s favour but because the Commonwealth is authoritative and representative of the Australian nation. 

The trend toward deemphasising the role of the Commonwealth in Indigenous affairs as opposed to the states and territories is worrying and wrongheaded in this respect also. Commonwealth involvement in Indigenous affairs was a hard fought reform that should not be dismissed. This is also concerning regarding the proposed limitations on what issues the national voice would be able to take up as opposed to the local and regional bodies. This is not empowering of First Nations. Rather it adds another layer of ineffective bureaucracy that is ultimately curtailed by inappropriate design. 

For a First Nations Voice to parliament to be meaningful and effective it must be empowered to be so through the self-determining basis of its own agenda. Continuing to control and limit what First Nations can speak to in this respect inappropriately curtails First Nations political power and authority, blindly places faith in existing structures that are failing our communities and makes a mockery of any contention otherwise that these reforms are designed to make a difference by listening to First Nations. 

As such, my further recommendations are: 

(4)   Any First Nations Voice to parliament must be appropriately resourced to ensure its function as a self-determining body. This should include significant investment from the Commonwealth and a permanent commitment toward the funding of the settlement of First Nations claims. 

(5)   Any national level of a First Nations Voice to parliament should not be restricted in what can it bring up as an issue, investigate, resource, speak on or otherwise engage on, including bringing to the attention of parliament, irrespective of whether those issues or topics may also be considered local or regional in their nature.  

5.          Concluding remarks and recommendations

The voice co-design process has provided a welcome opportunity to explore the design of a First Nations Voice to parliament protected by the Constitution. As noted, however, there are a number of issues with this process that must be addressed. 

As such, my recommendations in response to the Interim Voice Report as canvassed above are: 

(1)   Now that a model, regardless of its form, has been canvassed, the Government should move to introduce legislation for a referendum to establish a First Nations Voice to Parliament protected by the Constitution.

(2)   Following a successful referendum, another process must be conducted to appropriately engage and consult First Nations in the design of a First Nations Voice to Parliament. 

(3)   That the First Nations Voice, as empowered by a constitutional provision, must be to parliament. That is the voice’s primary institutional relationship must be to parliament; but it must also have appropriate resources and mechanisms to engage directly with the government and bureaucracy when required. This relationship to parliament should not be controlled or under the authority of government or any designated responsible minister. Rather, the First Nations Voice should be free, on its own self-determining basis, to decide when and on what topics it will engage with the parliament. 

(4)   Any First Nations Voice to parliament must be appropriately funded and resourced to ensure its function as a self-determining body. This should include significant investment from the Commonwealth and a permanent commitment toward the funding of the settlement of First Nations claims. 

(5)   Any national level of a First Nations Voice to parliament should not be restricted in what can it bring up as an issue, investigate, resource, speak on or otherwise engage on, including bring to the attention of parliament, irrespective of whether those issues or topics may also be considered local or regional in their nature.  

[1]            I am a named contributor on two other submissions to this consultation process. The first being the Public Lawyers submission and the second being the Northern Sydney Alliance for the Uluru Statement submission.

[2]            Despite the number of consultations being held by the National Indigenous Australians Agency they are not comprehensive or deliberative. They are also being conducted after the fact of design and provide little to no real opportunity for First Nations to have input into the design of a First Nations Voice. 

[3]            Substantive work and agreement already exist on the form of a constitutional amendment despite assertions otherwise. Much of this was canvassed by the Joint Select Committee in 2018. 

[4]            First Nations people and communities have not been meaningfully consulted or had purchase on the design of the current models..

[5]            The Government’s recent decision to extend the trial of the cashless debit card despite strong opposition from the Coalition of Peaks and many other community organisations is evidence of the deeply entrenched nature of disempowerment that First Nations face, even with organisations and agreements such as those represented by the Coalition of Peaks existing.                  

Living with abuse

LIVING WITH ABUSE

Please be warned that I write about child sexual abuse below. I do not write specifically about the abuse but rather about its impact on my life.

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I have been having a hard time since deciding to make an application to the National Redress Scheme that was established in response to the Royal Commission into Institutional Responses to Child Sexual Abuse. With everything that has been happening lately in Australia on the topic of abuse I felt that it was time that I took another step in my journey to live with abuse.

I knew that it would be difficult. I knew I would have a negative response. I paused when making the application to discuss with my wife whether or not I should continue. We both decided that it was important that I took this step, knowing full well the impact it may have.

My experience of the scheme has not been positive. It has been just over a month since I made my application, with the agency noting most applications are completed within 3-12 months. The process is impersonal and cold - it is too transactional. There is a focus on absolvement and finality that doesn’t fit well with the abuse or its impact. While monetary compensation was not my main reason for making an application it is otherwise minimal (ranging from below $5,000 to $150,000) and, in my opinion, unfairly categorised based on whether or not penetration occurred.

It has been one of the longest months I can remember. My sleep has been terrible, nightmares have returned and my stress and anxiety levels are high. I’ve been on edge not knowing what is happening and just waiting for something to happen. As I note in my impact statement - I am better at recognising these emotions and their impact on me physically and emotionally than I used to be, but that doesn’t lessen their impact nor the energy required to manage them.

As I am unable to sleep again, and unable to force myself to be productive on tasks that I need to complete such as research and my PhD, I’ve decided to write something and share part of my abuse impact statement to help work through this process. I struggle to know what to share and when. I don’t expect anything from anyone. More than anything this is a way for me to think through my abuse and my life with it, and to force myself to do something that I need to do - to write.

One reaction does bother me - a response I often receive, or that I perceive, is that I am a big boy that can deal with it. “You’re so successful” some will say, while family and others will note they’ve read something I have written or that they have seen me on TV. Like I wrote - I don’t expect anything from anyone. We all have our own lives that we are living. But we should be able to expect more from others as a community and so much of what has been happening lately reiterates just how far we have to go.

This kind of attitude that I have experienced goes hand-in-hand with another long-term response that I have received - the belief or idea that I am lazy or not trying. Just get up, get going, move on, get things done. For the most it is an attitude I have internalised. I graduated both of my undergraduate degrees, I got a job, I travelled a bit, I got married and I tried to just get on with it - to not be lazy, to be productive, to push on. The cost has been heavy and almost total.

Internalising this attitude has been one of the most dangerous things I have done; something that really only caught up with me as I started to break down in my mid-to-late twenties. The anxiety and stress was crushing. I just couldn’t force myself through anymore. The toll both physically and emotionally has been significant. I turned to things I had always done, but in a much bigger and abusive way - alcohol, gambling, drugs, any distraction that I could get my hands on that would keep my mind busy. My personal and professional life have suffered.

I had significant trouble managing relationships. I’d throw myself into particular tasks while others would suffer. I’d seek approval when it wasn’t needed or not there and still fear retribution or trouble for something that I hadn’t done or wasn’t responsible for. I take a lot on and have trouble saying no. Doubt has lingered over everything I do. From whether I am good enough for something or a task, to whether what I am doing is correct. All of this I believe stems, at least in a significant part, from the abuse I suffered. I was hardwired to respond and behave in a particular way and I further hardwired myself to behave in a particular way in order to survive.

And at almost two metres tall, and too far over 100kgs that I am happy to admit, I am a “big boy” with a big beard and the expectation remains that I will deal with it. And I will, but not in the way which that attitude expects, nor in the dangerous ways that I have before. In many ways I am still that little boy from 1993 in the photo above; now however I am in my early 30s learning to live all over again.

Me in 1993, either 4 or 5 years old.

IMPACT STATEMENT

It is hard to know what to write. I felt confident enough to make this application when I first made the decision to do so. After a long time of not wanting to pursue anything formal, as I have preferred to keep things to myself and have ended up pursuing other avenues of release, I felt that I had reached a point in my life where I was able to take things further. The arrival of my son has been a big part of this. I think often about the kind of father I want to be and how I would like to support my son as he grows. 

I graduated from a Bachelor of Arts in 2008 and a Bachelor of Laws (Hons) in 2012 and am currently enrolled part-time in a PhD. I am 33 years old. I am married and have a young son. This is only part of my story, however. I have struggled, especially in my twenties, with alcohol and gambling addictions. I have struggled with severe depression and anxiety, and lately with PTSD. I have also suffered since a young age with suicidal ideation. I have attempted suicide seriously once in my late twenties. 

The abuse I experienced at the [redacted] have not been my only issues. I come from a troubled family background that included abuse - it was this troubled family (typified by having a single mother, being from a low socio-economic background and being Indigenous) that I believe made it easy for people to single me out for abuse and for our family to be a target. 

As I have gone through several drafts of the details of my abuse and its impact on my life, however, my anxiety and stress levels have risen. I am now in a better position than I have been previously. I am now able to identify rising, negative emotions and their impact on me physically and emotionally. I am now able to identify my response to them in order to manage that response in a more healthy way. That ability however does not lessen the impact those emotions have, including on my sleep and mood. It takes a lot of energy to manage myself through times like these. 

 My personal and professional life suffer. I turn away opportunities and take much longer than normal to complete simple tasks. Most of the time I want to sleep all day. I often spend extended periods of time sleeping. [Redacted] I find it hard to keep routine for longer than a month or two at a time before I falter. It takes me a couple of weeks or more to re-focus and get back on track.

I have taken multiple breaks from writing this application. I discussed the situation with my wife. We discussed whether it is worth continuing with the application at all considering my current reaction and the potential for my anxiety and fears to increase. I fear not being believed and negative responses from others. I have tried to be more open with others and share my experience, including that I am making this application in the hope that by doing so I will help others but that I will also be able to rely on the support of others. No matter how much I develop and learn to understand the impact of my abuse, however, my fears and anxieties remain. The only difference over the past five years has been my seeking help to better develop techniques to manage the impact of this abuse on my life. 

It is hard for others to understand. For many looking at my life I have been successful. Especially when considering where I have come from. Yet when I explain the daily anxiety, I am often met with disbelief, no matter how well meaning the attempt to understand from others is. It is hard to communicate the impact of daily anxiety and stress. Whether in the workplace or at a conference or when getting ready for a meeting - the expectation and unknown interaction of meeting with others, no matter how well prepared I am, can be overwhelming. It is exhausting. Some days even the sound of an email arriving on my laptop is enough to set my anxiety off. 

I have been seeking professional treatment and have been medicated for the past five years. The toll on my life (professionally and personally) however is hard to explain. I have given up on and missed many personal and professional opportunities as mentioned because of my confidence and trust issues. I believe these issues have stemmed from and been confounded by my abuse. 

I suffer from intermittent periods of severe depression. I find it hard to get out of bed and to be motivated to do anything including my work and attending to my personal life. This has greatly affected by professional life also including progress over the years and most recently in being able to concentrate and make progress on my PhD. I have passed on employment opportunities because of severe anxiety and stress that I have felt about having to take them up and placing my trust in people and environments that I do not know. This is despite assurances that everything will be ok; I simply find it impossible to trust anyone. 

At times, especially during my twenties, when I have wanted to turn to services including the church or Christian organisations, I have been discouraged from doing so because of my experience. When my suicidal ideation has been particularly bad, I have wanted to turn to the church for help but have felt unable to do so. Any potential relationship that I may have had with Christ and the church or religion more broadly has been ruined. I cannot dissociate religion and Christianity from the abuse that I suffered and the hypocrisy I believe underpinned it. I cannot forget the lies that I was told and the justifications that were used by people in positions of power over me. 

[Redacted].

My trust and anxiety issues have impacted all aspects of my life. Education, relationships, work - everything. I have an extremely tough time being able to trust people and I am often quick to overreact emotionally when I perceive someone has slighted me. For me, these experiences remind me of my abuse and the justifications that were used to explain what happened. My memories of these events tell me that I am worthless - that I am so worthless that I could be used and abused in such a way. It is to feel entirely without purpose or meaning and without the hope or expectation of being able to get through my emotions and feelings of self-pity and hate. 

[Redacted]. 

[Redacted]. 

These impacts have had a larger effect on my health and depression. I am lucky that I have a loving wife and have recently welcomed a baby boy. Despite the challenges I face, I have decided to make this application as the next step in being able to move forward with my life and understand and process what has happened to me. I do not want my abuse and the negative impact it has had on my life to result in my son and family being held back from living life to the fullest. 

I hope that by going through this experience I can take another step forward in my journey toward living a better life, not only for myself, but for my wife who has shown me so much love and care and for my son and any future children that I may have. I do not want my children to be scared or restrained from experiencing life to its fullest - including religion if they choose - because of my own negative experiences.

It's been a while since my last blog post...

And it’ll be a while yet.

Check out my publications list and resume for other things I have written and been involved in lately.

If you’re looking for something to do - head to UluruStatement.org, sign-up and make sure you learn all you can about something I care very much about and do your part by lending your voice in support of the Uluru Statement from the Heart.

It’s time we had substantive, structural reform in this country that made a real difference and provided us, finally, with a new foundation to build a fair and meaningful relationship between Indigenous and non-Indigenous Australians.

History and the Uluru Statement from the Heart - speech prepared for the Australian Historical Association Conference 2019 and the plenary on Voice, Treaty and Truth

Uluru Statement from the Heart Plenary, Voice, Treaty and Truth, Australian Historical Association Conference, 9 July 2019, Toowoomba, Queensland  

Below are my prepared remarks on the Uluru Statement from the Heart and the NAIDOC theme of Voice, Treaty and Truth that I presented at the Australian Historical Association Conference, 9 July 2019. The AHA Conference was hosted by the University of Southern Queensland and held in Toowoomba, Queensland. 

History and the Uluru Statement from the Heart

I’d like to begin by acknowledging the Jarowair and Giabal people, elders past and present, and all other Aboriginal and Torres Strait Islander people. 

I’d also like to acknowledge Teela and Thomas, who I’m with today, and thank them for their work on ensuring the reforms called for by the Uluru Statement from the Heart – Voice, Treaty and Truth – become a reality. 

I’d also further like to acknowledge two people that aren’t here today but that are both very much part of the fabric of the Uluru Statement from the Heart and are key to us moving this reform forward – Aunty Pat Anderson and Professor Megan Davis. 

And I’d also like to thank Libby and the association for the invitation to talk about what I believe is the most important legal, and broader social reform, facing us as a community today, a reform that I believe will have positive repercussions beyond the narrowly defined field of Indigenous affairs. 

I, out of the three of us, have the somewhat ‘enviable’ task of talking to a room full of historians about the history behind the Uluru Statement from the Heart and the movement more broadly that has led to the reform sequence of Voice, Treaty and Truth. 

Considering that task, I’d also like to acknowledge the work of many of you on the history of our people and the foundational truth telling that you have all been part of that has further enabled our voices to be heard.

The Uluru Statement from the Heart is a momentous event in our history. I don’t believe there has been a greater consensus or amplification of Indigenous voices with regard to our hopes and desires. This is an authoritative document, premised in the authority of the participants at the regional dialogues across the country, and then at the National Constitutional Convention at Uluru, that continues the long history of advocacy of Indigenous people. The Uluru Statement from the Heart is an Indigenous document presented to all Australians – it represents our voices. 

It is a ‘statement from the heart’, from the ‘first sovereign Nations’ who have occupied the land, and that continue to exist today ‘according to the reckoning of our culture’. Very simply, but poignantly, the Statement asks, ‘How could it be otherwise?’ 

The question is a not so subtle reference to a history and practice that has indeed denied and claimed that the truth of our existence is otherwise. 

We know that history very well. 

It is a lived history of exclusion, denial, and erasure. Of the lack of agreement and recognition of our rights that inhere in us as a people, as Aboriginal and Torres Strait Islander peoples, not just the narrowly defined rights that we have come to be known by about our continually produced low socioeconomic status. 

It’s a history of lamented failures and broken promises; of vague legal principles and instructions that support beguiled hopes of legal claims and protections, whether domestically or internationally, while real, affective, sovereignty and authority is remade every day without us; it’s a history of misguided progressiveness and inclusions, but inclusions that have always been circumscribed or limited, or that have required the high price of the death of our distinctive being. 

It is a history of the contemporary practice of a redemptive liberalism that apologises for its past deeds, extricates the ‘bad’ parts, and smooths its exclusionary edges, while keeping still that strict and circumscribed limit to our recognition and reconciliation. 

It is a history captured by the fabulous retroactive moment of justice in Mabo. The recognition of the great lie that became known as terra nullius, but with the simultaneous legitimation of that same system, that in the words of Justice Brennan, could not recognise our people more than it had due to the risk of fracturing the skeleton of principle that gives Australian land law – and Australia more generally – its shape and internal consistency. 

It is a history where Justice Brennan’s other descriptor of ‘the tides of history’ in Mabo, that had washed away the sins of the past, cleansed the Australian state of that unutterable shame, leaving no other questions to be answered, or none at least the High Court would be willing or able to address, too often rules the day. 

It is this history and practice that I believe many Indigenous people and allies have always understood. It is a history that has always shown where sovereignty and authority lie, despite proclamations and declarations otherwise. It is a history that has always shown that greater political will is needed across the entire community; that limited inclusions without substantive reform have never been enough.  

It is a history also that has shown that what is required is an understanding of, and an appeal to, that greater political will and sense of responsibility that I believe continues to speak loudest through the Uluru Statement from the Heart, one that Indigenous people have always appealed to and based our claims in, however different those claims have been over time. 

We have been held captive – never completely – to these histories. Despite all this however, we have always spoken, our Voice and voices has always been there, present even in the moments of our supposed erasure. 

We have always spoken of our claims and our rights; we have always based those claims in our existence as the first sovereign peoples. We have always spoken of sovereignty and self-determination, not in the abstract and reified ways those terms have too often come to be understood and used, but in the ways that they are instrumental to the meaningful control of our lives and resources to live those lives. Our claims have never been unreasonable. 

These are the voices and understandings drawn out and amplified by the Uluru Statement from the Heart. 

Constitutional reform of course is not a new phenomenon. Since our first exclusion from the Australian Constitution and continued relegation to the whim and authority of the states and territories, Indigenous people have advocated to address the structural power imbalance that exists and the special place of Aboriginal and Torres Strait Islander peoples. 

This notably included specific proposals during the 1930s and 40s that eventually lead into the advocacy that achieved the momentous 1967 referendum. Our people, I believe, have always implicitly understood where authority and power lie in the colonies and succeeding federation, and have always appealed to and attempted reform of our relations within that understanding. This is why the Australian Constitution has remained a target of reform.

Yet the recent history of constitutional reform, at least since the then Opposition Leader Kevin Rudd promised constitutional recognition in the 2007 election campaign, has been a micro-representation of this greater history where our structural powerlessness has continued to hinder the realisation of greater reform. We had the Expert Panel report in 2012 and multiple Joint Select Committee Reports since. All did important work; all moved this reform forward; but all failed to appropriately reflect the voices of Aboriginal and Torres Strait Islander people. 

Thanks to our strong leadership that remained informed by our communities, however, a large group of our leaders met with then Prime Minister Tony Abbott and Opposition Leader Bill Shorten at Kirribilli House in 2015. Perhaps, not historically, the best place to be seeking agreements, promises or succession plans from politicians, but our leadership were able to present community concerns and the voices of Aboriginal and Torres Strait Islander people. 

The key message delivered was what the message from the Indigenous community has always resoundingly been. That is that substantive structural reform is needed, and that our community would support nothing less; that a new relationship could only be built upon the foundations of that meaningful change and that status quo inclusion would not work.  

The Referendum Council was born out of this process. The Referendum Council’s work wasn’t without its own challenges, but despite all of that, the Referendum Council was able to achieve something remarkable that had been largely missing from the reform process to date. That was an Indigenous led and authored process of deliberation, across the nation in multiple places, to flesh out and discuss what Indigenous priorities were. 

This was not an easy process; and Teela is going to discuss this process in more detail; but it was a successful, deliberative and legitimate process, one that is key to understanding the priority sequence of Voice, Treaty and Truth beyond mere slogans. These are substantive and meaningful reforms connected to and reflective of the priorities of Indigenous communities. 

It is this process that gives the Uluru Statement from the Heart its authority; a process that produced an authoritative representation to take forward to the Australian people and to ask all Australian’s to walk together in a movement for a better future. 

Of course we had former Prime Minister Malcolm Turnbull’s rejection of the Uluru Statement, but we shouldn’t make too much of this. Indeed, the Uluru Statement from the Heart, the specific reform sequence of Voice, Treaty and Truth, has outlived Malcolm Turnbull’s prime ministership and enjoys more support today, support that continues to grow. 

The Uluru Statement from the Heart and Voice, Treaty and Truth will hopefully not just outlive politicians but all of us. 

That question in the Uluru Statement from the Heart that I raised earlier remains key for me – ‘How could it be otherwise?’ 

This question acknowledges and places our histories where it should. It does not ignore them; it is aware of and informed by them; but it also refuses to be bound by past failures and injustices as we walk together in a movement for a better future. Truth telling in this respect remains the important challenge of work of us all to do and maintain as we work together to achieve Voice, Treaty and Truth. 

Why amending the Australian Constitution remains necessary for Indigenous recognition

The need for constitutional change should be clear when you understand that it was these old white men that wrote the Constitution during the late 1800s without care or consideration for Aboriginal and Torres Strait Islander people. Just because white supremacy, erasure and the ‘dispersal’ of Indigenous people was the doctrine of the day, doesn’t mean that it need continue in today’s ‘progresisve’ times…

The Australasian Federation Conference delegates, Melbourne, February 1890. Photographer: Johnstone, O’Shannessy & Co, National Archives of Australia.

The final report of the Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples is due by 29 November 2018. This will be the latest in a long history of reports addressing the place of Indigenous people in Australian society. It will also be the first, following the interim report produced in July, that has available to it the Uluru Statement from the Heart.

The Uluru Statement from the Heart was the result of a unique deliberative process whereby the Referendum Council centred the voice of Aboriginal and Torres Strait Islander peoples in the constitutional recognition debate. This process consisted in a series of regional dialogues across the nation, culminating in regional representatives gathering for the National Convention at Uluru in May 2017. Never in Australian history have so many Indigenous peoples been directly involved in shaping their own future and that of the nation.

Uluru affirmed what is important to Aboriginal and Torres Strait Islander peoples: the entrenchment of their Voice, the realisation of a Treaty and the telling of their Truth. Voice, Treaty and Truth question the very core of Australian society.

The Rotten Core of Australia

Australia remains marred by the refusal to address the demand of Voice, Treaty and Truth. At Australia’s foundation is an inability to meaningfully engage with Indigenous peoples as equals, according to their rights as political and cultural sovereigns. This issue differentiates Australia from similar countries, such as New Zealand, Canada and the United States, where more substantial progress has been made, but where that progress is based in the tradition and authority of agreements between peoples.

The Uluru Statement from the Heart marched beyond this restraint by rejecting minimalist and symbolic measures that have failed to affect change and address Indigenous claims. The level and nature of direct Indigenous participation in the dialogue process importantly gave the Uluru Statement from the Heart an unprecedent level of political legitimacy and cultural authority as a legitimate deliberative process and as an expression of Indigenous will.

The Uluru Statement from the Heart has also been lauded by constitutional and public law experts for its development within and suitability to the principles and practices of constitutional liberalism. These facts all make the continuing rejection of the Uluru Statement from the Heart by key members of the Commonwealth Government and other public commentators hard to understand.

FAILED HOPES, DREAMS AND LEGISLATIVE INERTIA

Laureate Emeritus Professor Cheryl Saunders AO has described the Uluru Statement from the Heart as representing a legitimate and genuine consitutional moment. What better foundation for amending the Australian Constitution, changing the rule of engagement and developing a new and better relationship between Indigenous and non-Indigenous Australian’s could there be? This image juxtaposed to that above of the ‘founding fathers’ of the Constitution and the Australian state speaks volumes.

The Uluru Statement from the Heart, resulting from the Uluru National Convention, 23-26 May 2017.

Rather than engage seriously with the invitation from Uluru to move toward substantive reform, key commentators such as former Prime Minister Malcolm Turnbull and current Prime Minister Scott Morrison have rejected the invitation outright.

Citing concerns that have been otherwise addressed by leading constitutional and public law experts, the Commonwealth Government has doubled down on their rejection, arguing that a First Nations Voice would be an unrepresentative third chamber of parliament, could jeopardise parliamentary sovereignty and would be contrary to the principles and practices of constitutional liberalism and individual rights that underpin Australian citizenship.

Others, such as Indigenous Affairs Minister Nigel Scullion, have further repeated discredited arguments that constitutional recognition would do nothing for Indigenous disadvantage, ignoring the obvious and well-established links between Government action and its legislative authority and the direct causational this has on the lives of Indigenous peoples. This position further ignores the incontrovertible fact that the legitimacy of Indigenous claims is based in more than just the alleviation of disadvantage and attempts at ‘closing the gap’.

This disappointing position demonstrates an unwillingness to affect substantial structural reform for Indigenous peoples while continuing to hold stock in failed legislative mechanisms that remain susceptible to the whim of Government and maintain a contemptuous disregard for the moral and political authority of the Uluru Statement from the Heart. Indigenous Australians are well versed in these politics; they have endured time again the generational failures of hopes, dreams and legislative action and inaction that have perpetually decentred Indigenous voices while purporting to include them.

Further concerning however has been the lack of engagement and understanding with the legal scholarship and expert advice about proposals for Voice, Treaty and Truth within the larger constitutional and public law framework. Most notably, the Government and key commentators have been critical of a lack of detail put forward by the Referendum Council and the Uluru Statement, stating that any First Nations Voice would have to be detailed and entered into the Constitution, presenting this as an insurmountable task, and using this disingenuous argument to bolster false claims about the nature of a First Nations Voice.

These claims are wrong. An entire corpus of domestic and international scholarship on constitutional and public law demonstrates this, but continues to be ignored by Australia’s political leadership.

The Australian Constitution does not have to detail or express the terms and conditions of a First Nations Voice. The much lauded 1967 Referendum that enabled the Commonwealth Government the power to legislate for Indigenous peoples did not layout the detail of the Department of Aboriginal Affairs or any other subsequent departmental iteration. It rather addressed the core issue at hand – the authority of the Commonwealth Government as enacted in the Australian Constitution and the status of Australian society as represented by the Australian Constitution.

The Uluru Statement from the Heart and the subsequent report of the Referendum Council were not wrong in demurring on the detail of a First Nations Voice. That is a matter for self-determining peoples to negotiate with the Australian Government once the ability for its realisation is enacted and protected in the Australian Constitution.

This does not mean that important legislatively enacted bodies such as a Makarrata Commission or an Interim First Nations Voice Office should not be established to enable and facilitate this process. This will be a necessary part of the development and implementation of Voice, Treaty and Truth.

But to avoid the Australian Constitution would be to continue the history of failed hopes, dreams and legislative inertia controlled entirely by non-Indigenous Australia that also perpetuates the refusal of Indigenous rights as political and cultural sovereigns.

LEGISLATING THE VOICE FIRST WOULD BE WRONG

These issues make the recent emphasis on the pursuit of a legislatively enacted First Nations Voice – such as that by Opposition Leader Bill Shorten and Father Frank Brennan – as either a trial before further change is attempted, or an alternative to constitutional entrenchment, all the more concerning. Many have been rightly critical of this movement highlighting the failure of this approach to comprehended what the Uluru Statement from the Heart represents, the lived reality of Indigenous peoples in Australian society as relative to the authority of the Commonwealth, State and Territory Governments and the failure to comprehend relevant constitutional and public law principles and practices.

Concerns have also been raised that any inclusion in the Australian Constitution would be a further colonial incorporation of Aboriginal and Torres Strait Islander peoples according to non-Indigenous standards. While these concerns are understandable considering the history of Indigenous affairs in Australia, the Uluru Statement from the Heart and the call for Voice, Treaty and Truth are further unique in this regard in being able to appropriately address this specific concern. This is because while the Australian legal system is a reality that Indigenous peoples must deal with, the call for Voice, Treaty and Truth is fundamentally built on centring Indigenous authority and providing for its entrenchment and protection, something not achieved before.

The fundamental rules of engagement must be changed for the institutional structures of the Australian state to affect Indigenous peoples being heard and to result in the much-needed reconfiguration of the relationship between Indigenous and non-Indigenous peoples. Constitutional amendment must address the issues at the core of the nation and the inequality in relations that have plagued relations and previous legislative actions. Without need for a detailed body or First Nations Voice, the Australian Constitution should: 

(1)   Recognise the status and history of Indigenous peoples;

(2)   Enable the Commonwealth to negotiate and make agreements with Indigenous people according to their rights and interests; and 

(3)   Entrench those rights and the right to be heard on those rights and interests. 

The Australian Constitution can be whatever the Australian people decide it to be; we should not be limited by incontrovertible legal doctrines and convenient fictions. The realty of Indigenous sovereignty, history and the right to self-determination makes a mockery of claims otherwise and demands the relationship be reset. The Australian Constitution remains the best place to begin that structural change, and the Uluru Statement from the Heart is our clearest statement of intent and importance to this affect.

Consorting With Half-Castes

First things first - I missed my February blog! Oh well, I had thought I might do a longer one to make up for it, but I am going to try and keep this one short and on point. 

I want to share an idea/direction with my research that I have been playing with lately, and the title that I am basically using for my PhD now - that is 'Consorting With Half-Castes' - and if my supervisors are reading - don't panic - it's all good!

'Alleged Idle and Disorderly Person' from the Narandera Argus and Reverina Advertiser, NSW, Friday 17 August 1934.

'charged with being an idle and disorderly person having insufficient visible means of support.'

DEGENERATE HALF-CASTES 

Anyone familiar with Australian history will know about the fears and anxieties around miscegenation and the different and broad socio-legal practices that were used to deter/prohibit the mixing of Indigenous and non-Indigenous peoples - especially those around what many termed the 'degenerate half-castes'.

'cautioned defendant about mixing with aborigines and convicted men.'

Similar to other colonial and racial histories (such as the US) the history and practice of miscegenation laws in Australia make for quite a confronting realisation of the affects and realities of the pursuit of the biological and sociological racism that informed public/private attitudes and policies toward Indigenous peoples. Searching the phrase 'Consorting With Half-Castes' or similar phrases such as 'Consorting With Natives/Gins/Blacks' on Trove alone reveals thousands of news paper articles reporting on the crime and punishment of miscegenation, especially during the early 1900s but right up until the 1960s. 

LAWS OF ACCEPTABILITY 

'brought a white woman to the district and left her destitute with some aborigines.'

The worst possible thing to do to a white woman...

The lived reality and experience of these laws is something that doesn't necessarily align with 'intent' nor the retrospective expectation/reading when looking back. I am interested in these histories however for their heuristic quality in understanding the law and its application in the everyday lives of those affected, contrasted with the explicit/implicit intent/desire to extend sovereignty, law and authority over peoples and communities.

'married to a half-caste woman. They had no means of support.'

Something like Foucault's emphasis on the regulative regimes that discipline, punish and produce subjects and non-subjects through exclusion and violence, such as the similar history with laws related to vagrancy, being idle and disorderly, using indecent language, but also the contingent and ineffable realities of those affected by those laws, but those that aren't necessarily visible, heard or understood.

Something like how miscegenation - buried deep in settler colonial preoccupations, fears and anxieties with sex, gender and power/authority - affects and fails to affect those it is aimed at, the failure of law to be law, somehting beyond 'laws' control and affect, but also the institutions - people, actors, values, ideals, police, courts, judgement, welfare and so on - that support these successes and failures, ensuring their everyday experience and reproduction.

THE EVERYDAY EXPERIENCE

'associated with convicted men rendered a man liable to arrest... To live an knock about with half castes was an offence.'

Much more can be said about these issues, but I am especially interested in the how these laws become woven with the experience of their enforcement - by all involved - and the affects of this weaving; how the prohibition, not necessarily always written into the black letter law but practiced in its assumption and implication through enforcement, affects and fails to affect; how Indigenous peoples survived and lived day-to-day despite prohibitions against their love, life, survival and being.

'Consorting With Half-Castes' also has value to me through a developing reading as a heuristic tool to not only understand sovereign authority and law, but especially to understand the constitutional recognition of Indigenous Australians. Because, without going too much into it - even though I need to - isn't 'Consorting With Half-Castes' what 'we' actually do, but what 'we' deny and fail to do in our failure and refusal to address the structural inequality and implications of the current constitutional regime?  I know, what? It needs a lot more unpacking to communicate what I am actually getting at here - and some pretty abstract discussion on 'recognition' which makes most peoples eyes roll into the back of the heads - but hey, I'll do that later. 

'It was not the practice of police to give relief [work] to men convicted of drunkenness... gave him the relief is they considered that by doing so they would help him to be a decent citizen... The reason for refusing him work was to break him away from his associates [aborigines].'

BEING BEFORE THE LAW: IDLE, DISORDERLY AND CONSORTING 

So to finish, I draw your attention to the snippets down the right hand side of this blog from an article titled 'Alleged Idle and Disorderly Person' from the Narandera Argus and Reverina Advertiser, NSW, Friday 17 August 1934.

For the most part, this article is about my non-Indigenous relatives, specifically my great-grandfather's brother Victor Thomas. Yet it is Victor and Ernest's (my great-grandfather) relationship with Indigenous people - 'half-castes' - and their breaching of not only miscegenation laws, but the broader socio-legal expectations and determinants of Australian society - those acceptability laws - that hammer through.

In this article it is clear that not only were sociological and biological determinants used to classify the race and societal position of Indigenous people, but also those non-Indigenous peoples that were involved with them to varying degrees of intimacy.

The insights read from these snippets for me are those symptomatic themselves of the settler colonial obsession, fear and anxiety with power, land, authority, race, gender and sex where Indigeneity and femininity are always read as lacking and degenerate, and can be created and produced as such if needed, while white is literally right, erected all too well upon that phallic explicit/implicit intent and desire inherent in settler colonialism.

'Fuck celebrating days made of misery (fuck that)'

A.B.Original - 'January 26'

‘I said celebrate the heretic anytime outside Jan 26 (anytime), That’s the date for them suckers doing that sucker shit (that’s true!), That’s that land-taking flag-waving attitude’

 ‘Fuck celebrating days made of misery (fuck that), White Aus still got the black history (that’s true), And that shirt will get you banned from the Parliament, You ain’t having a conversation, well then we starting it’

---

When I started my blog I promised myself I would post at least once a month. So it’s now 31 January and I haven’t posted since December 2017 – I am also madly completing last minute preparation for a PhD milestone next week.

 

QUICK THOUGHTS THEN

January 26 is impossible to escape – because it’s not just about a day, it’s always been about more. I turned my phone off for about four days and tried to stay away from all forms of media, I mean really I am just so sick of the shit. How hard can it really be? What is gained in further denial?

The most disingenuous waffling of it all is the call to focus on the big issues; the old chestnut of practical issues as though they are some how separate from the symbolic, the ‘important issues’ and don’t forget the ‘gap’. There is no difference! They know it, which makes their denial the even more insidious, spiteful and hateful – to what end? For what purpose?

The denial of a conversation and a change around January 26 speaks and is generative from the same denial of the Uluru Statement and illustrative of the fundamental need for structural reform to interrupt the operation of sovereign authority in Australia for Aboriginal and Torres Strait Islander People.

But hey we know all too well, it’s more of that ‘land-taking flag-waving attitude’. So Tarneen is right, let it burn. ‘Fuck celebrating days made of misery (fuck that)’ – fuck celebrating countries, laws, institutions and societies made of misery.

Gordon Bennett, Untitled (dismay, displace, disperse, dispirit, display, dismiss) 1989

 

Something I want to finish – January 26, Sovereignty and the Law

January 26 is officially celebrated as Australia Day, the commemoration of the 1788 landing of the First Fleet and the settlement of New South Wales by the British.

The date, its celebration and all that it has come to symbolise have however always been about much more than just the arrival of eleven ships. The day is refined through its repetition as another ritual re-inscription and production of settler colonial sovereignty.

That claim to sovereign authority; that same legitimating force of the cry of terra nullius. The repetitive celebration, once historically commemorated through the murderous bravado of the bushwhack, then later through such staged spectacles as subdued Aboriginals welcoming the British, is now subconsciously woven into the fabric of the national psyche through a carefully reproduced enjoyment of inclusive multiculturalism where the ecstatic intoxication of the forgotten frontier is now transformed into the rivers of grog that flow on a public holiday.

That time in 1938 when they deceived an Aboriginal community into reenacting the landing of Arthur Phillip, (Mitchell Library, State Library of NSW – Home and Away 17955), read more here.

Freedom, one of those apparent Australian values, means that all can now celebrate a coming together of the reconciled Australian community – one that has forgone its exclusive and violent past, washing itself clean in the tides of history, embracing its welcoming and inclusive present.

Yet question that freedom and inclusion, exist as other to that carefully policed inclusion, and the productive and protective force of such ritualised being, necessitated always by settler colonialism itself, lurch forward from the chasms of yesteryear, throwing off their cleansed veils of the tidal swells of progressive liberalism by marking anew those that would question or claim otherwise.

Commonly now referred to as Invasion Day, January 26 has become a symbol around which a contested and anxious national narrative grapples with a continued Indigenous presence that refuses to be confined and held captive to invasion, not just as a counter-narrative, but as affirmation of self.

This has always been the case. An anxious existence, predicated on that which it excluded, has always betrayed itself by its violent outbursts toward an Indigenous being that existed both for itself and as a perennial threat to the presumed totality of settler colonial claims.

The promise of justice in a reconciled Australia, heightened again due to the more recent questions of constitutional recognition, continues to betray itself through a repetition of these same practices. Rather than delivering on the promise of reconciliation, the justice offered is that of limited inclusion repeated again in settler colonialism's ritual reproduction of legitimated authority through the naming and demarcation of acceptability.

Gordon Bennett, Ask a Policeman, 1993 - Just remember when they say you have nothing to fear, they did the best they could, it's your own fault. This one hits pretty hard of late following further contact between family and the Queensland Police.

Lyrical devices, illustrated by examples such as A.B Original’s ’26 January’, highlight the often unseen or ignored fissures in both the promise of justice and the operation of sovereignty and law in settler colonialism.

Through these affirmations of not just counter-narrative but Indigenous being, a sense and understanding of the experienced but often ineffable existence of Indigeneity can be heard and understood. Rather than limiting ourselves to what the law or the promise of justice permits, A.B. Original reminds us that ‘you can call it what you want, but it just don’t mean a thing’.

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2017: Indigenous Recognition, Settler Colonials, Paris and the Law

The following are thoughts on my PhD research. Something of a process to collect where I am at for the end of the year.  

Most of these ideas are a development of issues I have been trying to think through following the blatant dismissal of the Uluru Statement and the Referendum Council's report by the Commonwealth Government. 

I have been trying to think through the disappointment and raw anger of what for many has felt like another kick in the guts. The seeming disdain and absolute disregard for an Indigenous voice - both actual and in the proposed constitutional body - has a long, violent and real presence and affect, despite many claims otherwise. This has only been further confirmed following PM Malcolm Turnbull's multiple enunciations of indifference toward the issue. Indifference really is too kind of a description. 

Speaking and being heard

My research has always been uncomfortably teased out from a sense of anxiety I had about the 'Recognise' program not providing for our voice and voices to be heard, and for me what I have seen as an important problematisation of the issue of speaking and being heard - the law of speaking and being heard and the constitution of this both in the literal sense of the written document but more broadly about the constitution of Australian society and the place of Indigenous peoples, cultures, laws, traditions and sovereignties. I often use this entry point of 'speaking and being heard' in my teaching and writing. The below image is of a protest banner by Bill Onus that dates somewhere between the 1930s and 1950s.

This is what it is about right? This is what the Governments and the Australian people have always failed to understand. The importance of speaking takes on many aspects but it also means a sovereignty - a voice - an ability to speak and, a responsibility to be heard, to hear. To speak as self - not as a parrot. For too long Indigenous people were characterised has being unable even to speak, and then later had corporeal restrictions on the ability to do so - but even now, after all of the change and development, after all of our 'rights', we seemingly still can't speak and be heard. The truth is of course we do speak, and we always have, its the hearing that's been the issue, and that comes with violent consequences. 

I was never fully supportive of the Referendum Council and the Uluru Statement - I have some reservations and still do with the broader program that in fairness are actually better described as issues with the former 'Recognise' campaign and proposed minimalist approaches to reform - but I wanted to support the outcome as I saw it for what it was: an affirmation of a sovereign Indigenous voice and a demand for more than just tokenism - a demand for structural reform in the actual power relationships that govern and are generative and reproductive of the many issues Indigenous peoples face. Critical scholars, public intellectuals, everyday people - across divergent opinions and thoughts - have all been calling for fundamental structural reform forever against the threat of the feckless and violent incorporations and assimilations of past and present. Aileen Moreton-Robinson's Talkin' Up to the White Woman: Indigenous Women and Feminism is an excellent telling of this history and the indifference toward the experience of our speaking and being.  

Recognition then? 

So - the Constitution, sovereignty, rights, speaking and being heard - recognising Indigenous peoples. I find it almost impossible - cognitively, practically, ethically - to address this issue through what are considered traditional legal paths. The law; the Constitution; our rights; the common law; native title - what does it all mean if when we speak we get kicked. It can be all so boring, but so violent in its institutional exclusions and constrictions - suffocations - of possibilities for different and better, for responsible relationships. It's cold, it's like concrete and steel bars, it's like a straight jacket or a prison cell - minimalist recognition and no change. Because it is true that while what we are saying is actually heard, the more important point is that we are ignored, we are treated with disdain and contempt; the fact that we are actually heard, but that the status quo continues as though 'they' know better, makes the failure all the more reprehensible. Ignorance and naivety perhaps could, but shouldn't be forgiven, what about blatant disregard? 

Just like the common narrative tale of 'Recognition', the hearing analogy runs along too where that once society was ignorant and racist they no longer are; they now hear; they now recognise. Redemptive liberalism and the promise of homogenous similitude - no thanks. It's a con because they always heard and always recognised just the same way they do now because nothing about the fundamental structural relations of power have changed, because the assumptions and values that inform the institutions - the 'constitution' of Australian society - remain the same. Terra nullius didn't disappear, neither was it overturned despite the common tale; the common law was simply corrected to what it should have been and was given the modern liberal gloss of a redeemed and inclusive society that enshrined in law the fundamental principles and practices of dispossession and extinguishment that were supposed to have been overturned by moving away from terra nullius. Sure there aren't anymore murderous bushwhacks, but do we really have to keep screaming about everything else? More Royal Commissions and reports to be commissioned and ignored; more people being paid and making a living out of Indigenous misery. 

So the myth? Recognition exists where it once didn't and the current practices of inclusion and incorporation aren't assimilationist or exclusionary where they once were. Something closer to the truth however is that these practices - these operations, ideas, values, assumptions - of the law, of sovereignty, of a sovereign authority, of the Australian 'constitution' have always been experienced by Indigenous peoples in this way. Yes context and tools have changed; affect and practice remains: the extension of control and sovereignty over Indigenous peoples with violent consequences. 

There is a lot in this that I am not explaining and needs to be unpacked, and has been in other work yet to be published, but this is my major issue. There has always been recognition; there has always been hearing; there has always been the law; to pretend otherwise as the liberal rights and recognition narrative does is to abrogate responsibility for this past and for our present, for the failure to actually hear; and perhaps most perniciously according this redemptive narrative, the benevolent recogniser can always blame the recognised, the provider of progress and the closer of gaps can always blame the Aborigine again for failing to take responsibility for billions spent and opportunities wasted while masking and erasing their own presence and responsibility, their own failure. 

Recognition then and now

Another entry point for me to make this point and critique is through the further representations - visual aids - of these recognitions of Indigenous peoples. The first, just below, is the tympanum of Brisbane City Hall completed by sculptor Daphne Mayo in 1930. The sculpture is called 'The Progress of Civilisation in the State of Queensland' - the title pretty much says it all. 

And here is a close up of what is left in civilisation's wake. 

Perhaps of its time; perhaps not relevant nor reflective of contemporary attitudes, perhaps, probably not. But the sculpture is so much more. It memorialises in stone the myth of terra tullius and the dispossession, dispersal and murder of Indigenous peoples. It's a permanent reminder of the pervasiveness settler colonial faith in progress, of a particular kind of progress. It's also an instrument of the law - of sovereignty. It's an extension of authority, productive of governing space, claiming that space, creating that space through inclusion and exclusion.  

The juxtaposition of this sculpture with Dibirdibi Country by Sally Gabori on the back wall of the Banco Court, Supreme Court of Queensland - just down the road from the town hall - is further illustrative of these points. 

Separated by almost 100 years, the two artworks - not necessarily by the intention of the artists - represent two recognitions of Indigenous peoples. One is the settler colonial belief and production of the dying race - something like a bed time story told by settlers to comfort themselves in the mythical realisation that they had nothing to be responsible for in the demise of Indigenous peoples, this was rather a natural occurrence when a higher civilisation comes into contact with a lower. The second, in its placement, is supposed to represent the reconciled Aborigine and different ways of seeing. The curator statement reads: 

It's also that 'knowledge and perspective' that is denied time again; that vision and knowledge, that sovereignty, which is ritually disavowed in every subsequent proceeding legal decision in this court room that intimates as the only sovereignty, that includes by excluding in its reproduction and affirmation of its sovereign self, the protection of that skeleton of principle Brennan J was so concerned to protect in Mabo via the denial of Indigenous sovereignty and the possibility to assert otherwise. 

No obscure legal document, instrument or instructions otherwise, no letters patent that state Indigenous rights exist or should, will change this or give standing in the High Court - this is the mythical power of law and sovereignty as it stands and is practiced in the Australian state. More broadly, it's that sovereignty that is denied, dismissed, ignored, demeaned and suffocated - never totally though - by the refusal of the Commonwealth Government to engage with the Uluru Statement and the Referendum Council's report. Anything short of fundamental structural reform in the power relationships between different peoples will result in another memorialisation of the dispossession of Indigenous people - just like the sculpture, just like the use of the artwork: the Constitution would be another stone carving, another court room appropriating Indigenous bodies and agency, another straight jacket, another mission, another training home, another island, another prison cell, another chain gang.

Paris and the Musee du quai Branly  

These recognitions of course don't just end there. They are everywhere. Another I wanted to include with these, which touches on Indigenous bodies and the corporeal nature of recognition, was one that I experienced in Paris at the Musee due Quai Branly.

I was in Paris in June/July 2017 for the University of Kent's Critical Theory Summer School. I participated in a two week seminar run by Professor Patrica Williams which was fantastic. But the many anxieties about my research project were intensified in Paris. The city, the country, maintains an ambivalent place in my own interests and research. Not just for the French settler colonial history, instances such as the history of Sydney's La Perouse, more global ideas such as Emmanuel Macron's blatant imperialism, self-styling himself as the new Sun King while telling Algerian youth to 'get over' colonialism and Africans' that their poverty problems are due to an inability to stop procreating, and then the broader issues of where does all of this fit - or how can I reconcile the at times seemingly disconnected world of academia with the lived realities of the trauma that often informs our/my work. The French presence is also strong in my research being heavily influenced by Jacques Derrida and Frantz Fanon and other debates about the usefulness or appropriateness of 'theory' and thinkers such as Derrida for Indigenous peoples. I expected most of these issues and feelings and dealt with them as I could. What I wasn't entirely sure about however was what I would encounter at the Musee du quai Branly. 

I am not sure, in retrospect, what I was expecting - perhaps it was more of a masochist's movement to expose myself - but the museum was another example of the recognition of Indigenous peoples and the currents of sovereign authority that inform and organise these relationships between different peoples in decidedly settler colonial terms. Much can be, and I am sure has been, written about the museum and its collection in conjunction with French settler colonial and imperial history. There was one exhibit in particular however that captured my attention. Below are sketches I made of this exhibition followed by photos that I took. 

The entrance to this exhibit was at the back of one of the main floors in a very dark area. The doorway was small and dark but illuminated from within. For me it was like walking into a cave, but through a narrow corridor into almost a coffin. Lighting became brighter as you entered and I couldn't help but think of the binaries of light and dark, the idea of the light of science, of collection and display illuminating knowledge made out on and out of the violence committed on and against Indigenous bodies. 

When you enter, the room tapers down the sides toward the end as the sketch shows above. I am tall, but it felt like a coffin to me, let alone being surrounded by skulls. Their were images of artefacts of peoples from all around the world but the skulls were all from Tasmania and dated mostly in the 1820s. Arranged, ordered, sterile - no explanation as to how the skulls were originally collected or any reference whatsoever to that fever pitch of grave robbery, murder and body dealing - nor of Indigenous perspectives. 

Walls covered in our people. 

Many of the photographs were of children. 

The side walls consisted of other peoples and artefacts, the back wall of skulls demands immediate attention however as you enter into an almost suffocating space. 

The only explanation of the exhibit: about the power and tools of photography. The explanation intimates toward the past but that is it, as though it remains as it is in reality the hidden known secret. How were the skulls collected? What of the violence involved? What of these peoples. My simplest description of this exhibit was that it was fucked. Yet it wasn't until I read 'Launceston Australie' on the photos of the skulls that the enormity of the violence toward and silencing of Indigenous peoples hit me again. It was probably too that visitors were laughing and taking selfies of one another in front of the photos - but there was something that I believe I felt as an Indigenous person in that confined, suffocating space that was the same raw emotion, pain and anger that I felt watching the response to Uluru unfold. 

The exhibit itself also repeated the supposed failed attempts of science to classify the different types of humans that the explanation made slight reference to. While proclaiming 'photographs of the past are a reminder of that every person alive today belongs to the same "body" of humanity' the exhibit simply represents and recommits without responsibility that same violence effaced in the proclamation to equality in humanity. Just because they say it is so, doesn't mean that it is so. The same patterns of imperial and settler colonial sovereign authority persist and reaffirm self as they do in the sculpture and the painting; while they, the current curators, didn't steal the bodies, they've reaffirmed the violence and imperial order of settler colonial terms by their representation and recognition where the skulls are now a useful lesson in the 'aesthetic of photography' just as Indigenous bodies, sovereignty 'knowledge and vision' are now useful tools for completing the reconciled nation and reconfirming settler sovereignty. 

So what next then? 

As I stated earlier, I find the law boring, but also exclusionary violent even when it tries to be inclusive. Mainly, this is because there is still a commitment fundamentally to one law, to one sovereignty, to a particular being projected as universal and the expense of others. And for all of our change we are very much the same, committing the same violences and sacrificing the bodies of others again for the reaffirmation of self. 

The law is not an innocent tool or institution, nor is it simply something affected by others; legal rationalities and practices have developed in their own right and institutions and in-turn also affect the different developments of a relationship between different peoples and the options available for reform.

The law, the Constitution, should also not be considered as something rigidly positivistic - a position of which has been directed toward proposals for reform where they are either characterised as being a step too far or outside of the law. The law should be and is more tactile, more relational, more flexible - but the foundations and structures upon which it - I guess what I mean here is the Australian state legal system/s but also the philosophy and jurisprudence of this - is built must change. The values and principles that inform, regulate and affect legal decision making must change. At the heart of this for me is a fundamental responsibility within a relational being between different peoples that must be respected and acted upon, not abrogated, ignored and erased - not be simply masked by proclamations of what the law is and isn't. 

For these reasons, and for a number of others I haven't really developed in this post, this is also why traditional political and legal approaches toward inclusion and recognition won't or don't work for me. They repeat the redemptive liberal promise without any substantive reform; they include by excluding, the price of which is paid inordinately by Indigenous peoples. This is also why I find it easier to enter into these debates from other places - places not normally considered part of the law, but places I understand as being central to the law, as being 'real' examples of the law, of where the law is felt and lived. 

I have been exploring this through Indigenous hip hop and rap of late: an Indigenous voice that is a sovereign affirmation of being, a refusal to be bound, suffocated and controlled, and a reminder always of the responsibility to others. This isn't a new process - literature, music, art and so on have been and are used as legal critique. But Indigenous hip hop and rap for me is about saying something ineffable, something I can't quite get onto paper or out through my research at the moment, but something that I live and experience everyday that the law can't capture, but should be and is in relation to and with the law - an expression of that emotion, pain, anger, but of pride and of sovereignty, of my indigeneity. 

The personal is political. Indigenous peoples, and others, have long been derided especially in the academic sphere for this approach. I am asked if sovereignty and similar themes or questions or terms aren't overdetermined and perhaps inappropriate - but that's the game which for Indigenous peoples just happens to be life. Sometimes you have to tow the line, be professional, be collegial, be respectful; but then other times you realise what you felt all along, that all of that is part of the problem, part of the masking of the continued violence and exclusion, part of erasure, and you realise that sometimes some people, some institutions just need to be told, so sometimes I think we just need to say: 'fuck the law!' 

I have a number of tracks on repeat as I research and write - but in going with the theme of affirmation and a refusal to be silenced; an affirmation of our sovereign being; I thought I would sign off with these few lines and the music video below: 

When the timing's right are you ready to take it? I been honing my components, waiting for my moment, And now I'm gonna own it, just feed me my opponents. 

Anything worth having ain't never coming easy, It's the hunt that we're on that bring another meal, Anything worth having ain't never coming easy, It's to the hunt we belong, man, that's just how I feel.