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Unpacking the Australian Indigenous Voice Referendum

Les Malezer (Gubbi Gubbi and Butchulla) is a retired chairperson of the Foundation for Aboriginal and Islander Research Action (FAIRA) and a longtime advocate for the promotion of human rights of Indigenous Peoples. Malezer worked with the Global Indigenous Peoples Caucus to advance the UN Declaration on the Rights of Indigenous Peoples through the final stages to the UN General Assembly in 2007. He is also a former Expert Member of the UN Permanent Forum on Indigenous Issues (2017-2019) and a former Cultural Survival board member. Malezer is also the 2008 Australian Human Rights Award recipient. 

Cultural Survival Indigenous Rights Radio Producer, Shaldon Ferris (Khoisan), recently spoke with Malezer about the October 14, 2023 referendum in which Australians voted on whether to alter the Australian Constitution to recognize Aboriginal and Torres Strait Island Peoples through the creation of an Indigenous advisory body. This effort was seen by some as part of a broader struggle for reconciliation and recognition of Indigenous Peoples in Australia. The ‘No’ campaign included augmented attacks against Indigenous voices and a racist, assimilative narrative based on the motto, "We are all Australians." Aboriginal personalities across Australian media denounced the toxic nature of the debates, online abuse, and discrimination that accompanied the campaign. Many also reported rampant disinformation about the consequences of the referendum and the perpetuation of the racist colonial myth of terra nullius. Ultimately, 60 percent of the country’s 17.6 million registered voted ‘no’ on the referendum. The following is an abridged version of their conversation. 

CS: Please give us a background on the referendum. Why was this issue not as straightforward as it may appear?

Les Malezer: It's a complex issue. I’ve spent the last three decades fighting for the United Nations Declaration on the Rights of Indigenous Peoples, working at the international level. Once the Declaration was adopted I continued to work at the international level, but I moved my attention back to Australia to try and get Australia to support the rights of Indigenous Peoples as set out in the Declaration. Australia voted against the Declaration in 2007. Since that time, [Australia] has said that it supports the Declaration. My concern is Australia has not done much to show its support for the Declaration, and in fact still opposes the rights as it did before 2007. 

My goal has been to try and build a bridge between the international understanding of human rights of Indigenous Peoples and the Australian, or domestic, understanding of human rights of Indigenous Peoples, so that Australia can be more aware of the fact that things have moved along quite a lot at the international level, not always to the liking of the government. Australia is way behind a lot of places in the world in terms of acknowledging Indigenous Peoples and respecting the fact that Indigenous Peoples have a right to have our own futures and not to be assimilated into the dominant culture of Australia.

So, my work since 2007 has been to lobby in Australia to get the Declaration into law. The issue that we're seeing at the moment is a political movement in the government and also in the Aboriginal Torres Strait Islander community to get some acknowledgement and recognition of Aboriginal Torres Strait Peoples in the Australian Constitution. My position has been to say that that attention that they're trying to get from the constitution is a diversion away from the issue of getting our rights into law. Parliament can legislate our rights into law already. It hasn't ratified ILO Convention 169, and that should be one of the first steps that Australia should take in the process of getting our rights into law. Whether or not the constitution should be changed is a discussion to be had.

Now, in terms of these two particular different objectives, one is to get Indigenous Peoples’ human rights into Australian law. To get acknowledgment and recognition in the Australian constitution don't necessarily mean the same thing, and won't necessarily lead to the same outcomes. It doesn't mean that they can't lead to the same outcomes, but it's a case of what is the direction and how it should be taken. By understanding that, it becomes easier to realize what's been going on in these last 18 months. In a number of countries around the world, governments have taken steps to recognize Indigenous Peoples either in the constitution or in some other way in the law, including ratifying ILO Convention 169. Australia is behind in that regard. Also, Australia is behind in the fact that we don't have any agreement with the government in the form of what we would call a treaty, an arrangement between the Indigenous Peoples and the nation about coexistence as Peoples. There's a number of places in the world where this has occurred, and Australia is, I think, the only former British colony where a treaty was never considered nor discussed or negotiated. By comparison, New Zealand has the Waitangi Treaty; in North America in the U.S.A. and Canada there have been a number of treaties that have been made.

Australia is devoid of any acknowledgement or reference to the First Peoples or Indigenous Peoples of Australia, and still today has not taken any steps towards remedying that situation. The Declaration was adopted 16 years ago. We also had the World Conference on Indigenous Peoples in 2014, and there was an Outcome Document produced by the United Nations General Assembly calling for all States with Indigenous populations to acknowledge the rights of the Indigenous Peoples. But Australia has not taken any steps at all in that regard. 

The proposal put forward to change the constitution came from some of the political members of the Australian government in 2009—that's 14 years ago—and it was recommended then that the Indigenous Peoples ought to at least be acknowledged in the Australian Constitution. This has been a political debate since that time. A lot of Aboriginal leadership have questioned whether we should or should not be in the constitution because we hold on to our sovereignty and our sovereign identity. There is a concern that being incorporated into the Australian Constitution surrenders our sovereignty to the government of Australia. That's a political debate that’s been in the background since at least 2009 in terms of discussion with the government.

Since 1972, we've had four national representative bodies, each of which has been suspended or canceled out by a change in government. When a supporting government comes into power they will establish a national body to advise the government on issues, but when the government changes, that body gets canceled. I've participated in all four of those bodies over the last 50 years, including the last body, which was called the National Congress of Australia's First Peoples. I was the co-chair for two terms, from 2010 to 2016. That body relied upon the government for funding to operate, and the government at the time refused to provide any funding. The body had to go into voluntary liquidation, and nothing has been in place since 2019. 

There's been this proposition that was developed from consultations in 2017 to create a change in the constitution to recognize that Aboriginal Peoples were here first and that we should have a national body to advise the government on the issues. That's what the referendum was called over; the referendum was called a year ago, and the proposal was defeated [last week]. The constitution will not be changed to incorporate those things. Again, there's a lot of argument for and against whether that change in the constitution should occur.

I've gone on the record saying I don't believe it's the right direction. It is my argument that Parliament should legislate the Declaration on the Rights of Indigenous Peoples into law, including immediately ratifying ILO Convention 169, which is an international treaty which will protect most of the rights that are articulated in the Declaration on the Rights of Indigenous Peoples and accordingly will ensure that our key right to self-determination and our right to our lands, territories, and resources are to be protected. This can be done simply by a vote in Parliament. The current government, which supported the referendum, has the numbers to get that treaty ratified, but it didn't go in that direction.


Photo by Broddi Sigurdarson.

CS: Why was the referendum voted down, ultimately?

LM: In Australia, the constitution can only be changed by a referendum where the majority of people in the majority of our states support the change. Now, that's a very complicated and difficult thing to achieve. We have six states in Australia, so it means four states have to support the change. And in those four states, the majority of people have to be in favor of it. As far as referendums go, Australia has been a nation since 1901. In 122 years, we've had 44 referendums to change the constitution and only 8 have succeeded. You can gauge from that it's very difficult to get the majority of Australians in the majority of states to support the change. 

More importantly, we are aware that where there has been success in changing the constitution by referendum, it needed bipartisan support. If there is not support from both sides of politics, then it is likely the referendum will fail. In this case, the government, in my opinion, rushed ahead without good advice to call the referendum. It did not get support from the opposition party, so it didn't have both sides of the government supporting the referendum. In fact, the other side of Parliament went very strongly with a ‘No’ campaign and made all sorts of accusations about the country being divided and made poorer for the proposed change. So it became very divisive in the community, which is why 60 percent of the people of Australia said “No.” Of the six states, no state voted in favor of a change. Every state voted no. That was a very resounding defeat for the government's proposal to change the constitution.

CS: How did Indigenous people vote?

LM: It's only less than a week since that referendum was held and the statistics have come out, so we still have to unpack how the results came about and what they actually mean. But it has been said that the majority of the Aboriginal Torres Strait people supported the change to be included in the constitution. In one electorate out of roughly 100-150 electorates that had a very strong contingent of Aboriginal Australian people in it, 80 percent of the population voted ‘Yes;’ that was in a remote area in the Northern Territory. The Northern Territory is not a state of Australia. Therefore, it has no effect on what happens in the six states. In all of the other electorates, we cannot discern how Aboriginal people voted [vs.] non-Aboriginal people because in the voting there was no distinction given on the ballot as to that. 

The message was being passed around very strongly by the advocates for ‘Yes’ that Indigenous Peoples everywhere supported it. But what we found, or we're still finding, is that when the referendum was first announced, a lot of Aboriginal people were in favor, [particularly] a lot of the young Aboriginal people. But as time went on, and as it got closer to the referendum, more and more young people were speaking out against the referendum, saying this was not in their interests, this was against the things that they stood for and what they wanted, as far as the relationship with government goes.

From my point of view—and remember that I'm a human rights advocate—I fought for the Declaration on the Rights of Indigenous Peoples, and my goal has been right up till today to see our rights put into legislation. I have a number of arguments as to why that referendum should not have been held and as to why the government should have taken a different course to put our rights into law, not call upon 26 million people of Australia, of whom we are only 3 percent, to make a decision that is so important for us. This is really what Aboriginal people have to decide: what we want to happen and how we want it to happen.

I saw no human rights value in that referendum; I saw risks in that referendum, and worst of all, I [foresaw] real problems. If the question was asked in the referendum and it was defeated, it would set back the fight we've been doing for human rights over these last 50 years because the majority of Australians are seen to be saying “No.” People will translate that in future politics to saying they said “no” to Indigenous Peoples’ rights. I don't think that's correct. I don't think that's what was said.

CS: Can you please explain for us why the Indigenous community is divided over this issue?

LM: Our people have a diversity of opinions and views and ambitions and ways in which they process the information that they're given, the facts that they're given. And I don't criticize any of our people for that, because at the end of the day, we come together and we decide ourselves, collectively, how things should be done. We've done that over the last 50 years, particularly while these 4 national bodies were in place. At the moment, we have no national body in place and everybody's running around like chickens with their heads cut off, having opinions about issues without knowing details. For example, our people don't know much at all about the UN Declaration on the Rights of Indigenous Peoples and don't understand how the human rights system, which operates at a global level, affects everybody in the world. That is, everybody is equal and has human rights equally. Even though Australia doesn't recognize the rights of Indigenous Peoples, our rights are recognized in international law. In Australia, we can't exercise that because we can't go to court and say that our rights are being breached. But internationally we are supported with our rights. That's what I think a lot of our people don't know. 

Our people are not very well educated in the education system. A lot of our people live in remote areas and do not get very good quality information about what's going on, particularly at the international level. In this referendum, I think there was a lot of exploitation done of Indigenous Peoples, particularly Indigenous Peoples living in the more remote and rural areas. In fact, that's one thing that came out during the later stages of the leadup to the referendum—that most of our people didn't even know what the referendum meant, what it was supposed to do and how it's supposed to work. Our people can be very easily exploited by misinformation. We even had from the opposition political party an Aboriginal person speaking up about the ‘No’ case, saying we don't want to be divided as a nation, we don't want to be two different Peoples, we all want to be one together. That advocate doesn't see Aboriginal people as being a Peoples with the right to self-determination, but rather wants us to assimilate into the mainstream political system so that we disappear and become part of the Australian population, and not remain as Aboriginal with our own cultural identity pursuing our cultural futures for our future generations. That's how much exploitation has been going on through the nation at the highest levels in Australia. We call it the “Canberra Bubble,” Canberra being our capital city, that people that are living and working in this enclosed environment, who are making all the noise, who are getting all the money, who are doing all the promotions and so on, are, in fact, confusing our people at best, but more so misleading our people.

CS: What comes next? 

LM: That's a good question, and I have a very strong answer. Indigenous Peoples of the world have worked since the early 1980s (and even before that, for over a century), but since the early 1980s we have gone collectively to the United Nations and said we must be heard and our rights must be protected. And we worked hard to get the Declaration adopted. It took 25 years, but we got it adopted. We then had a conference seven years later in 2014 at the General Assembly in New York, where an Outcome Document adopted unanimously by all countries, including Australia, said, “We commit ourselves to implement the rights. We commit ourselves to recognize the right of Free, Prior and Informed Consent. We commit ourselves to work cooperatively with the leadership of Indigenous Peoples to work out a plan for rights to be promoted and protected.” And yet, Australia wants to ask us ridiculous questions in a constitution that does not protect any of our rights about whether we want to be an advisory body.

We've been doing that for 50 years. We've never, ever stopped making noise since 1972 when we first set up the Aboriginal Tent Embassy in front of Parliament letting the government know what we want. What we have is a government that is racist. I think the people of Australia are comfortable with the Australian government because it is fairly open minded, liberal, and democratic in the way it operates. But it has vested interests that drive it, particularly the mining industry, agriculture, and so on, which is where the wealth of Australia comes from. They are against Indigenous Peoples having rights because it means that the stolen lands, the control over Indigenous Peoples having say over developments in their territories and so on, would affect the stranglehold that developments have over Australia.

So we're still very much a colonial backwater here in Australia. And the proposal, the referendum that was held, is not a model for other Indigenous Peoples of the world to follow. The model for other Indigenous Peoples of the world to follow is to ratify ILO Convention 169 that's been in place since 1989. Only 24 countries have ratified it. Also, [we] had the first International Decade of the World's Indigenous Peoples from 1995 to 2004 and the second Decade of the World's Indigenous Peoples from 2005 to 2014. So we've had two decades with programs of actions which call upon member states to do certain things to promote and protect rights. We've got the Outcome Document from the World Conference on Indigenous Peoples, adopted unanimously in 2014 even by countries like Australia that voted against the Declaration seven years earlier. So why is there this reluctance inside countries like Australia to take any steps to put Indigenous Peoples’ rights into law? 

In Australia, the reluctance is there because we can't do anything. We can't go to international courts because we're not a State. We can't go to domestic courts because our rights are not in laws. The best the government is offering us is to advise the government like we have [been] for 50 years, and they're saying that things will improve once you have that in the constitution. That's a lie. It's a mislead; it's a distraction. And it means that Australia still can get away with doing nothing to recognize the rights of Indigenous Peoples. We know that apartheid was a heavy discriminatory political issue against the South Africans. Well, in Australia, we also have a heavy discriminatory system against Aboriginal and Torres Strait Islander Peoples, and that is the absolute denial of our rights in Australian law. And now we have to go back to the international community and start the campaign for change.