Listening to The Voice

Published in The Saturday Paper, 21 January 2023

Brian Kamara Willis was born somewhere in the Northern Territory in 1953 or 1954 – he never quite knew where or when – of an Aboriginal mother and a white father. He was one of the stolen generation, snatched from his mother as a very young child, and taken to Adelaide to a childhood of institutions and foster homes where he never settled.

A bright kid, he wanted to change things. He went back to the Territory and won a job as a field officer for the new Alice Springs Aboriginal Legal Service. Where he did so well that he was picked for an Aboriginal study grant, came to a Melbourne school for a transition year, and was then admitted to the Melbourne University Law School where I was then teaching. That’s how, in the early 1970s, I and my family came to know and love him. Brian, and his partner and their two young boys, often visited or stayed at our home.

But he felt hemmed in by the big city, with a constant sense that he just didn’t belong. So he deferred his degree and returned to the Territory, where he blossomed again – becoming, not much later, Director of the Legal Service, and an outspoken champion of his people, speaking and writing in fierce and moving terms, above all about the plight of the stolen generation.

Something, however, was still wrong. He just couldn’t fight the pressures, shrug off the prejudices and sustain the struggle for long enough. On the night he died, in 1980 – aged just 26, or maybe 27— he went to a political gathering, drank too much, as he often now did, and all the passion, the rage and the misery boiled to the surface. Those there remember him bursting out at one stage ‘The urban black, the part-Aboriginal, is the man in between. He has nothing.’

He went home from the meeting, picked up a shotgun, and in front of his wife and two young boys, blew out his brains.

His funeral in Alice was a desolate affair. The presiding clergyman spoke to a small and dispirited congregation about the sin of Brian’s suicide and the perils of drink. No account of the great things he had achieved in his short life; no solace for his family; no understanding of the terrible pressures he felt; no love.

Trying to compensate, I spoke in the Senate a day or two later about how much Brian’s life and death meant to me, and what it should mean to others. And could not hold back my tears: I think the only time in my long public life when I completely lost it. The memory of that brilliant young man, and his family, and what happened to them, in a society which just couldn’t cope with the kind of diversity he represented, which just couldn’t recognise that we are one common human family, haunts me still.

Four decades later, the heartbreak I witnessed and experienced in 1980 is still all too common. Too many Indigenous Australians continue to suffer, as they have since the first days of white settlement, from prejudice, discrimination, mistreatment, neglect – and well-intentioned but misguided government policy choices.

The 1967 referendum, the 1975 racial discrimination act, the establishment of ATSIC in 1990, Paul Keating’s 1992 Redfern address, the Mabo legislation, and Kevin Rudd’s 2008 apology to the stolen generation were all national landmark acts of recognition and commitment. Each of them made a difference. But ATSIC imploded a decade later, and none of the other big symbolic steps – or any of the umpteen Commonwealth policies and programs they spawned over the decades – succeeded by themselves in solving all the age-old problems confronting our first Australians. Potentially making a real difference, on a scale greater than any of them, will the creation of a constitutionally embedded Aboriginal and Torres Strait Islander Voice.

At the heart of the case for the Voice is that it will mean Indigenous Australians will be recognised – for the first time in our founding national document, and for the first time in practice on anything like this scale – not just as the subjects, for better or worse, of government policy choices, but as agents of policy change, contributing actively to legislative and executive decision-making.

The product of an extraordinarily comprehensive national consultative process culminating in the Uluru Statement from the Heart, the Voice deserves none of the sniping it has received from either some perennially disaffected members of the Indigenous community itself, or from familiar conservative political voices. Of course it will not by itself deliver the well-crafted, well-financed, health, education, welfare and employment programs still so desperately needed. But it is a means to that end, not a distraction from it. Three other major objections have been raised against the Voice – sometimes sincere, but more often confected. None withstand serious scrutiny.

The first such charge – currently generating most of Opposition Leader Peter Dutton’s synthetic indignation, and that of his Murdoch press acolytes – is that electors are being asked to vote blind, to buy a pig in a poke. That charge of lack of detail has some credibility when one looks only at the draft question to which it is currently proposed that voters respond ‘Yes’ or ‘No’: Do you support an alteration to the Constitution that establishes an Aboriginal and Torres Strait Islander Voice?

But this worry dissolves when looks also at the actual draft constitutional text which will, as currently proposed, accompany it on the ballot paper:

• There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice.
• The Aboriginal and Torres Strait Islander Voice may make representations to Parliament and the Executive Government on matters relating to Aboriginal and Torres Strait Islander peoples.
• The Parliament shall, subject to this Constitution, have power to make laws with respect to the composition, functions, powers and procedures of the Aboriginal and Torres Strait Islander Voice.

Stating that “Parliament shall have power to make laws with respect to” a subject-matter – here, the precise institutional shape the Voice will take – is standard constitutional practice, and should not spook anybody. Clear Australian precedents exist for leaving it up to elected parliamentarians to fill in the detail, and amend it as necessary over time. For example, the 1946 amendment giving parliament power to provide social security benefits. So too the 1967 referendum, which gave parliament the power to legislate for ‘the people of any race for whom it is deemed necessary to make special laws”.

The second familiar objection, again a Coalition favourite, is that embedding the Voice in the constitution will give it the de facto status of a third legislative chamber, or a body able not just to influence but override executive decision-making, unconscionable in an institution with at best a very limited democratic mandate, sectional rather than broadly national. But the reality is that avoiding the Voice being marginalised will be a bigger challenge than curbing its power.

This objection ignores the plain text of the proposed amendment – which enables the Voice’s only to “make representations to Parliament and the Executive Government”, not to make or amend legislation or override anyone. It also ignores everything we know about the attentiveness of every Australian government and parliament, from time immemorial, to maintaining its own prerogatives. And what we know about the strong Australian tradition of judicial restraint in constitutional interpretation and deference to democratic process.

The third concern may seem at first sight to have more principled legs. It is that any provision, particularly one embedded in the constitution, which gives a particular racial or ethnic group a distinct and special status in the nation’s affairs is inconsistent with our proud (albeit recent) tradition as a genuinely multicultural nation. But one can accept that general principle while acknowledging that there is something very special and distinct about Aboriginal and Torres Strait Islander Australians, the sole occupiers and owners of our land for 60,000 years before any of the rest of us arrived. We do need to respond – in a way that has no relevance to any other identifiable group in the community – to our past failings of recognition and commitment.

We need to do that not grudgingly but with the kind of sensitivity so trenchantly articulated by Paul Keating in his Redfern address. As he said, “it was we who did the dispossessing. We took the traditional lands and smashed the traditional way of life. We brought the diseases. The alcohol. We committed the murders. We took the children from their mothers. We practised discrimination and exclusion. It was our ignorance and our prejudice. And our failure to imagine these things being done to us.” Even Tony Abbott acknowledged that this “movingly evoked…the stain on our soul”.

None of this means abandoning our critical faculties. None of it means sacrificing reason to sentiment. None of it means giving rewards and benefits to individuals irrespective of their needs and deserts. None of it will automatically translate into more effective government programs. But what it does mean is non-Indigenous Australians listening, as we have never seriously listened before, to what our Indigenous brothers and sisters have long being trying to tell us. That we do owe a very special debt to the first Australians. And we can do much better than we ever have before in discharging that debt. By listening – really listening – to their Voice.

Gareth Evans was a consultant to the Attorney-General and Minister for Aboriginal Affairs in the Whitlam Government, a Senator and MHR from 1978-99, and a Cabinet minister throughout the Hawke-Keating governments of 1983-96. He was subsequently President & CEO of the International Crisis Group (2000-09) and Chancellor of the Australian National University (2010-19), and has written or edited fourteen books, most recently Good International Citizenship: The Case for Decency (Monash, 2022)

This article was originally published in The Saturday Paper on 23 January 2023.