The three demands of the Uluru Statement, accepted entirely by the Prime Minister, are the Voice, a Makarrata Commission, and ‘truth telling about our history’.

But Uluru also asserts Aboriginal ‘ownership of the soil, or better, of sovereignty’ based on prior occupation, and asserts that such ‘sovereignty has never been ceded or extinguished and co-exists with the sovereignty of the Crown’.

Thus when asked to vote to amend the Constitution to incorporate the Voice, Australians need to understand that the Voice will be used to support the demands for recognition of co-existing sovereignty, a Makarrata commission designed to produce a treaty and monetary compensation, and a re-writing of Australian history.

Sovereignty

The Aboriginal sovereignty is not sovereignty as normally understood. Uluru states:

‘This sovereignty is a spiritual notion: the ancestral tie between Aboriginals and the land, or ‘mother nature’, and the Aboriginal and Torres Strait Islander people who were born therefrom, remain attached thereto, and must one day return thither to be united with our ancestors. This link is the basis of ownership of the soil, or better, of sovereignty. It has never been ceded or extinguished, and co-exists with the sovereignty of the Crown.’

It is regrettable that the quoted passage was plagiarised in Uluru without acknowledgement. As Chris Merritt wrote in the Australian (March 3, 2023):

The primary author of that passage was a gifted jurist from Zaire, Bayona-Ba-Meya, whose submission to the (International) Court was picked up and incorporated in the ruling handed down by Judge Fouad Ammoun, the court’s Lebanese vice-president.

It was copied from a 1975 ruling of the International Court of Justice that concerned the people of the Western Sahara.

The Uluru statement appears to be a claim that there presently exists an unextinguished and unlimited claim of ownership of the soil, concurrently with the well-recognised sovereignty of the Commonwealth of Australia over Australian territory.

However, as Justice Gaegeler J said in Love v. Commonwealth: ‘Australian courts both before and after Mabo v. Queensland (No.2), as well as the reasoning in Mabo itself, have consistently rejected the existence of Aboriginal and Torres Strait sovereignty.’

Nonetheless, Robert French AC in a paper entitled, The Voice: A Step Forward for Australian Nationhood (February 4, 2023) expressed the view that Aboriginal sovereignty, meaning ‘authority over land and water within the First Nations legal framework, is capable of co-existence within the colonising legal framework’. (para.35). Mabo is said to deal with the British /Australian concept of sovereignty (addressing ownership of land and water) but says nothing about the concept of ‘sovereignty’ in the Aboriginal legal structure. Thus he argues the two different ‘sovereignties’ can co-exist.

However, assuming the quoted passage from Uluru does capture the Aboriginal concept of ‘sovereignty’ as Uluru states, that ‘sovereignty’ does not impact on the integrity or primacy of traditional Commonwealth sovereignty. The Aboriginal concept of ‘sovereignty’ can, in reality, have no effect or application in Australian law.

‘Ownership’ of the soil, land, and water, is determined by the statutes of the Commonwealth, states, and territories.

It seems the Voice will seek to change this basic structure of our governance and society.

Makarrata Commission

Uluru’s second claim is for ‘a reconciliation’, a Makarrata Commission, and a treaty.

These claims for reconciliation, a Makarrata, and a treaty are based solely on race.

They split Australians into two groups on a permanent basis. The first group comprises those identifying as Aboriginals and Torres Strait Islanders. The remaining 97 per cent of Australians are the second.

However Mr French, in the paper referred to, wrote that the Voice: ‘…rests upon the historical status of Aboriginal and Torres Strait Islanders as Australia’s Indigenous people. It does not depend on race.’

I am unable to understand that view.

The Voice represents only Aboriginal and Torres Strait Islanders. Those who elect the representatives who will become the Voice are exclusively of the Aboriginal and Torres Strait races. The functions of the Voice are to address matters of interest or concern to Aboriginal and Torres Strait Islanders. Unless you are of the Aboriginal and Torres Strait Islander race, Australians can play no part in any aspect of the Voice. Those who would benefit from the proposed Voice are exclusively Aboriginal and Torres Strait Islanders.

As Mr French wrote: ‘The Voice may make representations about “matters relating to Aboriginal and Torres Strait Islander Peoples” (para.45); and “the Voice will present First Nations’ views at a national level”(para.48).’

To my mind, it departs from reality to contend that the Voice does not rest upon race. It addresses only people of those races.

The second group, Australian non-Aboriginal citizens, all born here since federation, or arriving here as migrants and acquiring citizenship, are not in conflict with Aboriginals.

However, it is assumed by Aboriginal interests that because of dispossession of Aboriginals, the injury and harm done to them, and the destruction of their then way of life by the infusion of different cultures, there needs to be a reconciliation between Australia and its present citizens (excluding Aboriginals and Torres Strait Islanders) on the one hand, and presently living Aboriginals and Torres Strait islanders on the other.

That reconciliation is sought to be achieved by a Makarrata which Uluru says ‘captures our aspirations for a fair and fruitful relationship with the people of Australia’, excluding themselves. The commission is to work toward ‘a final settlement and reconciliation between Indigenous and other Australians by addressing five aspects of Makarrata, namely, recording the history (and) preserving the culture of Indigenous peoples … empowering Indigenous peoples to take responsibility for their communities, creating commercial opportunities for Indigenous peoples … and concluding agreements between governments and Indigenous peoples that addresses the four criteria above’.

Many may think that these objectives are desirable. But it is not clear what any of them have to do with some supposed dispute between Aboriginals and the remaining 97 per cent of Australians.

Perhaps the answer is found in the fifth objective of concluding agreements with governments, no doubt with significant monetary consequences.

‘An inquiry would commence when a person who represents an Aboriginal … submits a claim to the tribunal alleging their people have been prejudicially affected by some regulation, order, proclamation, notice or other statutory instrument made by the Crown since 1787; or by any policy or practice of the Crown; or by any action or omission by the Crown.’

After inquiry ‘the Tribunal may make recommendations about actions the Commonwealth might take to ameliorate or remove the prejudice, or to prevent others being similarly affected in the future’.

The matter is then to be referred to the ‘Office of Settlements which is responsible for “facilitating the negotiation of an agreement between the claimant group and the Commonwealth”’.

It is difficult to contemplate a process more designed to cause dissent and disunity within the Australian community.

The process looks backwards, and trawls over the events, legislation, policies, and administrative actions of the last 225 years, seeking to discover areas of discontent in the minds of presently living Aboriginals about events many in the distant past. And no doubt judging the situations of the past by the attitudes of today.

This will be part of the ‘truth telling about our history’.

To achieve all this, and more, Aboriginal interests want a Voice enshrined in the constitution.

The Constitution

Amending the Constitution involves deep considerations.

The Constitution is the document which sets out the bases on which Australian society is regulated by determining the scope of permissible laws. It does and will regulate our existing and future laws. When considering change it is thus of critical importance to determine the type of Australia that we all Australians wish to have in the future.

In considering the Voice proposal, the first and central question is whether we wish to consider Australia in the future as one peoples, with each having the same rights, obligations, and opportunities. Or do we wish to consider Australia as a number of siloed groups, with one or more groups having a different status, different rights, and different privileges? If it be the latter, future unity within our society is improbable.

The first model is of an Australia of one people, all accepted as Australians irrespective of race, colour, ethnicity, background, religion, or the duration of their forebear’s residence here. The only criterion for recognition is Australian citizenship achieved through birth here to Australian parents, or acquisition by choice following migration. Assistance from the society is based on one criterion only: disadvantage.

A second question arises concerning democracy.

Whatever may have occurred in the past, in 2023 all Australians live in a democracy. Central to that concept is that each person has one vote. Each is free to join such association as he or she wishes, and each person is free either individually, or through some association, to make representations or advocate for such policies as they regard as desirable.

All Australians, including Aboriginals and Torres Strait Islanders, at present have that right.

It is not clear why either race, or length of forebear’s occupation, should constitute grounds for conferring an additional right to have a further ‘Voice’ to the Parliament or government. And nor should disadvantage. Disadvantaged Australians should be assisted irrespective of race, or period of residence of themselves or their forebears.

The potential for great irremediable harm to Australian society means that the Voice should never be incorporated in the constitution.

Terence Cole is a former Judge of the NSW Court of Appeal, and later was appointed as Royal Commissioner by the Commonwealth into The Building and Construction Industry in Australia 2001-2003, and the UN Oil -for Food Programme (2005-2006). He also conducted an Inquiry under the Defence Act regarding the Loss of HMAS SYDNEY (11) (2008-2009).