Dealing with disappointment

Why No is a hard word to hear

The Australian public has voted No to the proposal to add an Aboriginal and Torres Strait Islander Voice to Parliament to the Australian Constitution. This Referendum has been a disaster on so many levels. Rather than uniting us, it’s divided us, and left us angry and confused. The mess this has created is immense.

Many people will be devastated. Indigenous people may feel that they have been personally rejected. This is understandable. After all, the message from Yes campaigners has been that, if you care about Indigenous Australians, you vote Yes. On 13 October 2023, two days before the vote, Prime Minister Anthony Albanese said:

“This week of all weeks, where we see such trauma in the world, there is nothing, no cost, to Australians showing kindness, thinking with their heart as well as their head, when they enter the polling booth tomorrow.”

The implication was that if you voted No, you were unkind and heartless, and contributing to the sorts of divisions we’ve seen in Israel and Gaza.

Advertisement for the ‘Yes’ campaign.

It is vital that we keep two things in mind.

First, a No vote does not mean that the Australian people don’t care about Indigenous people. Nor does it mean that they want Indigenous people to suffer. Given the high initial polling for Yes, evidently people do care.

Secondly, contrary to the Prime Minister’s comments before the Referendum, this should not be the end of the matter.

It’s pivotal to consult Indigenous communities, and to ensure laws and measures designed to help them work effectively, and are consistent with cultural mores. If the Prime Minister truly wants to help Indigenous people, and if current measures are not working, he should look for another way.

There is a tendency for some to conclude, that when the public doesn’t vote in the way that they’d prefer, the fault lies with the people—we need a different public—less prejudiced and more enlightened. I can see this occurring already. One person on Twitter/X said:

“…We are a nation of small minded backwards racists. Own it. And now it’s official and you can check how many racists live in your local area on the AEC website! *slow clap*”

This conclusion should be resisted.

In a democracy, people should be able to openly express doubts and worries, with freedom of political speech enabling a feedback loop, ensuring that democratic bargaining can occur. If this has not worked, those who brought forward this proposal need to learn from its failure.

The Voice Referendum was a massive exercise in “preference falsification.” The majority of people became unconvinced by the proposal, and in fact, a large group of people in Australian society went from yeah to nah. However, very few people spoke of this publicly, lest they be accused of racism or stupidity. As a result, there was a reversal of opinion among political centrists, but only a few dared “put their heads above the parapet.” Timur Kuran has explained:

In the presence of preference falsification, private opposition may spread and intensify indefinitely without any apparent change in support for the status quo.¹

In the privacy of the ballot box, the private preferences of the Australian public were revealed. Far more people privately thought that the Voice was unsustainable than were prepared to talk about it publicly.

I don’t know who is responsible for this, but it riffs off the Yes23 logo and Australian expression “yeahnah”, which indicates - I hear what you say, but no.

Don’t stigmatise the people: listen to them.

Therein lies the rub.

I have been concerned about the uncompromising nature of the debate on the Voice proposal since late last year. It has been like watching a train crash in slow motion, and being unable to stop it.

The general proposition of much public commentary on the Yes side was that—because Aboriginal and Torres Strait Islanders are an undoubtedly disadvantaged minority group—the Voice proposal was the end of the conversation, not the beginning, and that anyone who asked questions was unjust, stupid, or racist.

It’s possible to care deeply about a group of people, yet nonetheless wonder whether a particular law or drafting of a law will produce the promised outcome. 

A significant factor in the failure of the proposed amendement was the way in which some Yes campaigners responded to any good-faith criticism of, or doubts about, the proposal. This is why preference falsification became rife. Few people can easily brush off an accusation of being stupid or racist. I suspect that many voters started to worry about giving power to people who would stigmatise them if they simply asked questions.

I wanted to publish a piece about my own questions and doubts earlier this year. It came from a place of care for Indigenous people, first to warn advocates for Yes that the campaign was alienating people and running into disaster, and then to explain that—if proponents wanted this to get up—they’d have to change tack, provide more details, and face questions.

I was warned that if I published the planned article, I would be branded as “racist”, I would face abuse, my career would be destroyed, and Melbourne Law School would by attacked by association.

I was shocked and surprised. My great-great-great grandfather was Indigenous. I’ve taught Indigenous students since 1998, beginning as a tutor with the then-Koori Students Liaison Unit, and I have done everything I can to ensure Indigenous students feel welcome in our law school. My first scholarly work was on native title, and argued that we should take account of Indigenous perspectives on property.

Anyone who knows me knows that my arguments come from a place of care. I want to make things better. I did not want to cause problems for my colleagues, sow division, or exacerbate the slow-motion train wreck of a well-intentioned but imperfectly realised idea. I held my peace.

Over the course of the past nine months, I talked to a large number of immigrants to Australia. I felt it was important for them to understand the history of why Indigenous people had asked for this amendment. Most people to whom I talked had no idea of the history, and hence I drafted a post on it.

Many people to whom I spoke had come to Australia to escape distinctions on the basis of ethnic heritage, and in some instances, they had been forced to flee as refugees. I spoke to former Soviet Jews who noted that their USSR passports had denoted their ethnic ancestry and religion, to Malaysians and South Africans who had come to Australia to escape racial divides, and a Serbian who had lived through the war in the former Yugoslavia. The Serbian woman was very worried about emphasising ethnic divisions. These people all had good reasons to be anxious.

I thought it was important for these people’s concerns to be faced head-on, rather than responding glibly, “This isn’t about race, it’s about ancestry from Australia’s First Peoples.” While the Voice may not have used “race” in the discredited nineteenth century sense, the proposal focussed on ancestry.

We therefore witness the strange phenomenon that people who voted against a law designed to distinguish between Australian people on the basis of ancestry and cultural practice have been accused across the board of racism.

“My identification as a Jew was also on the basis of ancestry,” said one of the ex-Soviet people, in a low voice, “but I don’t dare talk about this. My ancestry isn’t entirely Jewish—one of my grandparents was a kulak—but I was identified as Jewish. I want to help Aboriginal people, but I am not sure about this. I don’t think dividing people up like this goes to good places. If we put it in the Constitution and it doesn’t work, Katya—can we take it out again?” I confirmed that it would be difficult: once entrenched, it’s hard to get something out, and that this was, in fact, part of the justification for the Referendum.

Nineteenth century racists created a moral hierarchy based on race. “White” people were “superior”, and people such as Aboriginal and Torres Strait Islanders were “inferior”. This is part of the reason why colonisation had such a devastating impact. In the US, if you had “one drop” of “inferior” blood, you were tainted. A racist attitude toward Indigenous people was, shamefully, entrenched in the Australian Constitution. 

We still have the “race power” as a head of legislative power in the Constitution (s 51(xxvi)) but it has been amended to remove the words “other than the aboriginal race in any State.” Ironically, it has since been used primarily to pass legislation for the benefit of Aboriginal and Torres Strait Islander people, which is why the section cannot simply be removed.

Biological race does not exist among humans: we are simply not genetically distinct enough. Indeed, chimpanzees possess biological race, but humans do not. It’s also true to say, as Marcia Langton pointed out in a radio interview last year, that Aboriginal and Torres Strait Islander people are from diverse ethnic backgrounds, with diverse customs and beliefs, and any reference to such people as belonging to a particular “race” is inapposite.

Although the Voice amendment did not invoke “race” in the nineteenth century sense, it gave one group of people a different kind of representation on the basis of ancestry and cultural heritage. It was precisely this which made many immigrants anxious. They know through experience that discrimination on the basis of “race” and on the basis of ancestry are only a hair’s breadth apart.

Langton also argued that Aboriginal and Torres Strait Islanders were united by a sense of past and present injustice. If this was the thread used to sew disparate groups together, there is a risk that it would have entrenched resentment, rather than alleviating it. In a recent study, Israeli academics noted that a focus on collective and individual victimhood gives rise to a need for recognition of wrongdoing, moral elitism (a belief that one is superior because one is a victim), lack of empathy towards those viewed as oppressors, and rumination on past wrongs. It produces more resentment, not less.

I’m a remedies lawyer, and my business is righting wrongs. One must recognise historical wrongdoing, and learn from it, but one should not make people in the current day responsible for the acts of their ancestors. That’s tantamount to blood guilt, a dangerous concept indeed. Our common law has statutes of limitations for a reason. There comes a point when—even if someone has done wrong—liability must run out so people can move on. Recognising wrongs is important; ruminating over them is unhealthy.

We can’t turn back time. Indubitably, Indigenous people suffered during the colonisation of Australia. However, once the egg is broken and scrambled, there’s no way to unscramble it, any more than it’s possible to take the Indigenous part out of me, and extract it from the convicts and settlers.

People from many different backgrounds now share this amazing and beautiful land with the First Peoples. All we can do is try to learn from the mistakes of the past, and move forward. It is really important not to come out of this process angrier and more broken than we were before.

It can be counterproductive for society more generally when we concentrate on what divides us, rather than what we have in common. The work of the psychologist Karen Stenner is revealing.² She argues that while some people celebrate diversity and openness in society, and some are simply conservative, there is a third group that is innately authoritarian when faced with diversity. The belief that we can “educate the intolerance away” is mistaken. She says:

But all the available evidence indicates that exposure to difference, talking about difference, and applauding difference—the hallmarks of liberal democracy—are the surest ways to aggravate those who are innately intolerant, and to guarantee the increased expression of their predispositions in manifestly intolerant attitudes and behaviours.

Paradoxically, then, it would seem that we can best limit intolerance of difference by parading, talking about, and applauding our sameness. ... [t]his strategy is not nearly as daunting as it might sound, as it is the appearance of sameness that matters, and that apparent variance in beliefs, values, and culture seem to be more provocative of intolerant dispositions than racial and ethnic diversity. …

Ultimately, nothing inspires greater tolerance from the intolerant than an abundance of common and unifying beliefs, practices, rituals, institutions, and processes. And regrettably, nothing is more certain to provoke increased expression of their latent predispositions than the likes of “multicultural education,” bilingual policies, and non-assimilation. In the end, our showy celebration of, and absolute insistence upon, individual autonomy and unconstrained diversity pushes those [who are] by nature least equipped to live comfortably in a liberal democracy not to the limits of their tolerance, but to their intolerant extremes. ...

We can do all the moralizing we like about how we want our ideal democratic citizens to be. But freedom is most secure and tolerance is maximized when we design systems to accommodate how people actually are, because some people will never live comfortably in a modern liberal democracy.³

Paradoxically, separating out Indigenous people and emphasising how they are different from other Australian people may unintentionally entrench intolerance among those who are most likely to respond in an authoritarian or racist manner.

We cannot forget Indigenous people who are suffering and in need. We must look at other means of ensuring Indigenous communities are consulted on measures designed to help them. There is considerable goodwill out there, and frankly, it’s been squandered in this debate. 

A Malaysian Chinese friend reminded me of the words of the song “I am Australian”:

We are one, but we are many
And from all the lands on earth we come
We’ll share a dream and sing with one voice
“I am, you are, we are Australian”

This is the spirit in which we must move forward.

We must work together, as one, with a recognition that, whatever our ancestry, we are all Australian. Please, Aboriginal and Torres Strait Islander people, do not take this as rejection. My private discussions with a wide range of people uniformly disclosed the fact that people cared deeply, it’s just that they disagreed on the best means to deal with the problems.

I am sick of division and polarisation: Us and Them. Social media and world politics is rife with it, and in some places, people are killing each other on this basis.

Let’s remember that we are all human, and that everyone, including the First Nations people of this country, deserves to be treated with decency.

1. Timur Kuran, Private Truths, Public Lies: The Social Consequences of Preference Falsification (Harvard University Press, 1995) pg 20.

2. Karen Stenner, The Authoritarian Dynamic (2005).

3. Ibid, 330–31, 335.