The “race power” Haunting the Voice Referendum in Australia – Is a Sonorous Constitution Possible?

by | 2 Oct 2023

Gordon Bennett, ‘Home Decor (Relative/Absolute) Flowers for Mathinna #2 (1999)

Although ‘race’ is a construction, it manifests in various juridical and political formations, and in the lived experience of everyday life. Australia, as a state and society, is one such racial formation. As odd as it seems, ‘race’ is written into the text of the Australian Constitution 1901 (s. 51 (xxvi)). Sir Samuel Griffith, Australia’s first Chief Justice, and Sir Edmond Barton, Australia’s first Prime Minister, were strong proponents of the inclusion of a ‘race power’ in the Convention Debates prior to Federation.1Chief Justice French, “The Racial Discrimination Act: A 40 Year Perspective” – Inaugural Kep Enderby Lecture”, 22nd October, 2015. In the 1901 version of s. 51 (xxvi), the “aboriginal race” were explicitly excluded. In 1967 a referendum wrote them back in, but as one among many “people of any race” with respect to whom the Federal Parliament could make laws. Australians are now being asked to vote in a referendum to affirm that Aboriginal and Torres Strait Islander people are the First Peoples of Australia; and to give them an institutional Voice to be heard by the Federal Parliament and Executive on laws and other matters that may affect them.

Whether constitutions are thought of as texts, symbols, screens for the imagination, or cultural artifacts – the Australian Constitution cannot be addressed without talking about ‘race’. ‘Race’ is not the only determinant, but it is a huge part of the drama that is unfolding in this referendum; an essential element of the historical specificity, as Stuart Hall called it, that helps us to think conjuncturally to understand the ‘history of the present’.2Stuart Hall, “At Home and Not at Home: Stuart Hall in Conversation with Les Back” in Stuart Hall, Essential Essays, Vol 2: Identity and Diaspora. David Morley (ed.) (Durham: Duke University Press, 2018). 271-72. While commentators are very shy to do it, to not talk about race in the context of this referendum would be to miss the point.

The colonial assertion of sovereignty by the British Crown was uniquely racist in Australia in that it absolutely refused to recognise the First People as people. This is unlike what happened in Canada, New Zealand, or the United States of America. As Valerie Kerruish put it, this should be a ‘legacy of unutterable shame’ were it not for the “brutal fact that it is not only uttered, it is doctrine” repeated and reiterated by Australian courts.3Valerie Kerruish, “Imperatives of Extinguishment: Kartinyeri v The Commonwealth of Australia” [2008] Dilemmata: Jahrbuch der ASFPG 1-35 at 27. The referendum is a politically bold but juridically minimal attempt to address this foundational racist exclusion of Aboriginal and Torres Strait Islander peoples from the political and legal institutions of Australia. It is also a modest attempt to address what the 1967 Constitutional amendment failed to do.

Although I now live far from the unfolding event, it feels personal. I was 14 when my family and I arrived in Sydney in 1984. The hollows of the Western Sydney suburbs where we landed might have been dull, but no one was being dragged from their homes to be beaten, killed, or herded into camps as they were in the erstwhile home of Sri Lanka that we had fled. There was peace – or so it seemed at first glance. I soon realised that no matter what the colour of one’s skin, to become Australian in this colonial-settler and migrant society is to be inscribed into a regime of racially differentiated treatment, rights, and hierarchies where the First Peoples are often the worst off. There is a ‘secret country’ in plain sight where the First Peoples have been dispossessed of their lands, and confined to reserves; where Aboriginal and Torres Strait Islander children are systematically removed from their families, and where incarceration is a tool of racialised death-dealing. There has been a genocide that Australian courts have refused to cognise.4See Kruger v The Commonwealth of Australia (1997) 190 CLR 1, and my discussion of the case in S. Motha, Archiving Sovereignty: Law, History, Violence (Ann Arbor: University of Michigan Press, 2018). Ch. 3. It is willed ignorance, then, to believe that these are merely the bygone cruelties of a colony-on-the-make.

What is the point of a Voice in Parliament when the necropolitical and extractive forces that undergird the state are so ubiquitous? It is a question asked not only in Australia, but in many other colonial states where frontier-policing, banking, finance, media, and corporate power combine to leech wealth, untroubled by liberal constitutional niceties. The national noose that is the Murdoch press make these conjunctions all the worse in Australia. What is the point of polishing a colonial constitution, giving it a new shine and lease of life, in such a setting? 

One answer is that Aboriginal and Torres Strait Islander communities have called for this constitutional change. Needless to say, there is not, and need not, be unanimity on this approach. In 2017, the Uluru Statement from the Heart put it like this:

“We seek constitutional reforms to empower our people and take a rightful place in our own country. When we have power over our destiny our children will flourish. They will walk in two worlds and their culture will be a gift to their country.

We call for the establishment of a First Nations Voice enshrined in the Constitution.

[…]

In 1967 we were counted, in 2017 we seek to be heard. We leave base camp and start our trek across this vast country. We invite you to walk with us in a movement of the Australian people for a better future.”

Australia is now on a constitutional journey. The hope of the First Peoples is that all Australians will accept their invitation to make this journey together. They have made a ‘statement from the heart’, an offer to begin to work with each other for peaceful coexistence and reconciliation. The Uluru Statement makes an affective and political appeal to a colonial-settler-migrant people and their representative institutions to look at their shameful present and make a new start. My contention is that this newness will not come to pass until the logics of racial exclusion, along with the practices of differentiated belonging that new migrants also buy into, are fully acknowledged.

When Australia became a Federated state in 1901 with a new, but by modern standards emaciated constitution (it has no Bill of Rights, for instance) – its core racial logic and exclusionary character were embedded within the powers of the Federal Parliament. The ‘race power’ enabled the Federal Parliament to control migrant labour and so called ‘alien races’. Making laws with respect to Aboriginal and Torres Strait Islander peoples remained  primarily with the States of the Federation. The 1967 referendum changed this in the following terms:

 “s. 51  The Parliament shall, subject to this Constitution, have powerto make laws for the peace, order, and good government of the Commonwealth with respect to:

… xxvi the people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws”

The words struck out here were removed by the Constitution Alteration (Aboriginals) Act 1967 following a highly successful referendum. This same Act, by authority of that referendum, repealed s. 127; the constitutional provision that speaks volumes about the exclusion of First Peoples:

“s. 127. In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted.”

The 1967 referendum is celebrated as a political high point. With the repeal of s. 127, Aboriginal and Torres Strait Islander people were counted for the first time as citizens of the country in the Australian Census of 1971.  And so, at the ripe-old age of 66, the Commonwealth of Australia could make laws with respect to “people of any race” (now more widely conceived than in 1901), and start counting people hitherto excluded as “aboriginal natives” in the national census. One has to be starved of political possibilities to eat this constitutional food and call it progress!

But was it progress? Arguably, a host of legislation including the Racial Discrimination Act 1975; Aboriginal Land Rights (Northern Territory) Act 1976; Aboriginal and Torres Strait Islander Heritage Protection Act 1984; and the Native Title Act 1993 enshrining the terms of recognition of First Peoples’ proprietary interests in land and waters articulated by the High Court in Mabo v Queensland (No 2)(1992), were passed using the Federal Parliament’s ‘race power’. However, the use of the power, albeit meant for the “peace, order, and good government” of racialised peoples, need not be benevolent. The Australian Parliament or Executive need not act benignly or in the interests of First Peoples when it conducts its affairs. Indeed, how will these legislators and governments know what is in the best interests of First Peoples?  This is the constitutional problem that was not addressed in 1967. It is the question most centrally at stake in the referendum about to take place.

The High Court’s decision in Kartinyeri v The Commonwealth (1998), the key case on the scope of the ‘race power’, illustrates my point. Kartinyeri concerned the constitutionality of the Hindmarsh Island Bridge Act 1997 which excluded spiritually significant places from the protection granted to them under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984.5For an excellent reflection on the case, see Irene Watson “First Nations Stories, Grandmother’s Law: Too Many Stories to Tell”; and for context and background, Kathy Bowrey, “Commentary on Kartinyeri v The Commonwealth” in Heather Douglas etal (eds.) The Australian Feminist Judgments: Righting and Rewriting Law (London: Hart Publishing, 2014). Both Acts were created under the authority of the ‘race power’. The applicants argued that the ‘race power’ could only be used to pass legislation that would benefit Aboriginal and Torres Strait Islander people once they were included within its ambit. They wanted the Bridge Act declared unconstitutional. Only one of the six judges in Kartinyeri (Justice Kirby, dissenting) concluded that the ‘race power’ had to be used to benefit Aboriginal peoples. Chief Justice Brennan and Justice McHugh, with eyes on the controversial Native Title (Amendment) Act 1998 coming their way later, did not even deem it necessary to engage with the scope of the ‘race power’. As Alex Reilly perspicaciously puts it, this self-imposed restraint meant that they “failed to act judicially” – a damning indictment of judges.6For a detailed examination and commentary on the judgments, see Alexander Reilly, “Reading the Race Power: A Hermeneutic Analysis” (1999) 23(2) Melbourne University Law Review 476.  Justice Gaudron’s took to a dictionary to interpret the scope of the power – the word ‘for’ has 20 meanings, for instance, and is present in s. 51 xxvi (Reilly, 495). How would judges know what is in the best interests of the ‘races’? Of course, this begs the question about the ambit of the supervisory jurisdiction of the High Court. Whether laws are beneficial or not for the ‘races’ is a discretion left to Parliament. What prevailed overall in Kartinyeri was the standard doctrine of Parliamentary Sovereignty – the plenary and absolute power of Parliament to make laws whether they are beneficial or detrimental to the interests of the First Peoples or any other ‘raced’ group.7See Kerruish, 2008, for a searing critique of all judgments in Kartinyeri. And so it is that Australia’s modern Constitution equips its Parliament with the power to crush the sacred places, culture, and life-world of a people differentiated by ‘race’.

Despite it all, the First Peoples have invited Australians “to walk with us in a movement of the Australian people for a better future”. Voters in the referendum on 14th October have been asked to vote ‘yes’ or ‘no’ on a single question. The question on the ballot paper asks:

“A Proposed Law: to alter the Constitution to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice.

Do you approve this proposed alteration?”

The proposed amendment to the Constitution that Australians are being asked to approve is the insertion of the following lines into the Constitution:

“Chapter IX Recognition of Aboriginal and Torres Strait Islander Peoples

129 Aboriginal and Torres Strait Islander Voice

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

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

Nothing in the terms of this amendment should threaten a famously confident nation.8A ‘double majority’ is required for the alteration of the Constitution to be affirmed – that is, a national majority of voters in the states and territories, and a majority of voters in at least 4 of the 6 Federated states. This is a hard hill to climb, as even if there is a national majority of people voting ‘yes’, the reform can be blocked by a relatively small number of people in sparsely populated but historically conservative states.

But getting there requires a sensitivity to and understanding of the deep injustices wrought by ongoing colonial practices, and the failure of existing structures to address them. Australians must come to terms with the fact that their ‘home is girt by race’. While no one would want to sing those words into their nation’s story, a constitutional conversation that omits it will only reinscribe a myth, as Australia’s national anthem does, that “we are one and free”.

Another constitution is possible. And here, the full range of what it means to have a First Peoples’ Voice in Parliament should be considered. A Voice in Parliament, unlike the monological text of a constitution, invokes a sense of polyvocal relationality. This Voice entails speaking with each other across the historical divides. Thought and thinking, by contrast, are mostly solitary pursuits. The assertion of Voice disrupts the western metaphysical tradition’s elevation of thought as the ideal – consider, for instance, the hierarchy of logos over phonē.9contra Giorgio Agamben, Home Sacer: Sovereign Power and Bare Life (Stanford: Stanford University Press, 1998). 7-8. I am drawing inspiration here from David Scott’s beautiful epistolary work of mourning for his friend and mentor Stuart Hall.10David Scott, Stuart Hall’s Voice: Intimations of an Ethics of Receptive Generosity (Durham: Duke University Press, 2017). Ch 1. Scott recounts the timbre and grain of Hall’s voice which embodied his style of thinking with others. Even Hall’s writing, Scott tells us, could carry the aurality of his speaking voice. Inspired by Adriana Cavarero’s book For More Than One Voice, Scott writes of voice “as the content of the form of a social ontology that is at the same time the sonorous ground, so to speak” of “human relationality and political community” (35, original emphasis).11Adriana Cavarero, For More than Voice: Towards a Philosophy of Vocal Expression (Stanford: Stanford University Press, 2005) cited in Scott, 2017. There is no need, of course, to confine this relationality to humans. Imagine the constitutional potential of letting the sonorous sensibility of First Peoples join the polity by expanding participation in Parliament. A Voice will necessarily test the capacity for listening:

“unlike with sight, which is the sense of sovereign intellectual control, with hearing there is always a fundamental experience of exposure and vulnerability and susceptibility. Our ears are continuously open to the world around us. We cannot as easily shield ourselves from sound as we can from sight; we cannot simply choose to hear or not hear”. (Scott, 36-7, original emphasis)

Of course, new closures, and disputed meaning could interrupt and complicate what is conveyed through a Voice – but this would be part of a dialogue. It might be said that there are already many voices, and no one is listening. But with a First Peoples’ Voice, no judge, official, or legislator could legitimately claim ever again that what is in the best interests of the First Peoples cannot be known. Government would become of the people – all the people of Australia. 

Stewart Motha is Professor of Law at Birkbeck, University of London.

He hosts the Countersign podcast available wherever you get your podcasts

  • 1
    Chief Justice French, “The Racial Discrimination Act: A 40 Year Perspective” – Inaugural Kep Enderby Lecture”, 22nd October, 2015.
  • 2
    Stuart Hall, “At Home and Not at Home: Stuart Hall in Conversation with Les Back” in Stuart Hall, Essential Essays, Vol 2: Identity and Diaspora. David Morley (ed.) (Durham: Duke University Press, 2018). 271-72.
  • 3
    Valerie Kerruish, “Imperatives of Extinguishment: Kartinyeri v The Commonwealth of Australia” [2008] Dilemmata: Jahrbuch der ASFPG 1-35 at 27.
  • 4
    See Kruger v The Commonwealth of Australia (1997) 190 CLR 1, and my discussion of the case in S. Motha, Archiving Sovereignty: Law, History, Violence (Ann Arbor: University of Michigan Press, 2018). Ch. 3.
  • 5
    For an excellent reflection on the case, see Irene Watson “First Nations Stories, Grandmother’s Law: Too Many Stories to Tell”; and for context and background, Kathy Bowrey, “Commentary on Kartinyeri v The Commonwealth” in Heather Douglas etal (eds.) The Australian Feminist Judgments: Righting and Rewriting Law (London: Hart Publishing, 2014).
  • 6
    For a detailed examination and commentary on the judgments, see Alexander Reilly, “Reading the Race Power: A Hermeneutic Analysis” (1999) 23(2) Melbourne University Law Review 476.
  • 7
    See Kerruish, 2008, for a searing critique of all judgments in Kartinyeri.
  • 8
    A ‘double majority’ is required for the alteration of the Constitution to be affirmed – that is, a national majority of voters in the states and territories, and a majority of voters in at least 4 of the 6 Federated states. This is a hard hill to climb, as even if there is a national majority of people voting ‘yes’, the reform can be blocked by a relatively small number of people in sparsely populated but historically conservative states.
  • 9
    contra Giorgio Agamben, Home Sacer: Sovereign Power and Bare Life (Stanford: Stanford University Press, 1998). 7-8.
  • 10
    David Scott, Stuart Hall’s Voice: Intimations of an Ethics of Receptive Generosity (Durham: Duke University Press, 2017). Ch 1.
  • 11
    Adriana Cavarero, For More than Voice: Towards a Philosophy of Vocal Expression (Stanford: Stanford University Press, 2005) cited in Scott, 2017.

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