A rejection 30 years in the making!

Abstract

The failure of the Voice Referendum in October 2023 cannot be seen in isolation; its roots lie in the policies of the Howard government nearly three decades earlier. From the undermining of native title to the abolition of ATSIC and resistance to reconciliation, Howard’s systematic dismantling of the modest reforms initiated under Hawke and Keating set the stage for the rejection of the Voice. Beyond the referendum itself, the continued denial of self-determination is evident in the unfulfilled recommendations of the Royal Commission into Aboriginal Deaths in Custody and the stalled progress of Closing the Gap, leaving Aboriginal and Torres Strait Islander peoples facing a bleak status quo.

The rejection of the Voice Referendum in October 2023 was not an aberration but the culmination of a political trajectory shaped over decades. The antecedents of this failure can be traced directly to the Howard era, where Indigenous self-determination was systematically dismantled through the abolition of the Aboriginal and Torres Strait Islander Commission (ATSIC), the distortion of native title, and the rhetoric of ‘practical reconciliation’. This legacy did more than dismantle representative structures; it normalised a culture of refusal – one that continues to structure settler responses to Indigenous calls for justice.

Equally powerful in producing this outcome was silence. Silence about history, as generations of Australians graduate without ever hearing of the Redfern Speech ¹ or the Barunga Statement. ² Silence within institutions, where racism is minimised to ‘process failures’ and never named for what it is. Silence in public discourse, where Australians express pride in Indigenous cultures while refusing to support even the most modest structural reforms. These silences, layered upon each other, enable the ongoing survival of colonial structures while foreclosing the possibility of genuine transformation.

This article argues that what the referendum revealed is not simply resistance to constitutional recognition, but the endurance of a colonial logic in which Indigenous voices are tolerated only when they conform, and silenced when they dissent. If we are to move beyond survival within coloniality toward transformation, legal and political systems must recognise Indigenous law and sovereignty not as supplementary to the Australian state but as foundational. Anything less risks repeating the cycles of tokenism, delay and erasure that have marked the last three decades.

False expectations

[T]he starting point might be to recognise that the problem starts with us non-Aboriginal Australians. It begins, I think, with that act of recognition. Recognition that it was we who did the dispossessing. We took the traditional lands and smashed the traditional way of life. We brought the disasters. 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. With some noble exceptions, we failed to make the most basic human response and enter into their hearts and minds. We failed to ask – how would I feel if this were done to me? As a consequence, we failed to see that what we were doing degraded all of us. ³

Looking back on then Prime Minister Paul Keating’s speech, it seems even further out of reach since the failure of the 14 October 2023 referendum – where the majority of Australians voted against the proposal to recognise the First Peoples of Australia by establishing a body called the Aboriginal and Torres Strait Islander Voice in the Constitution.

I am stirred to expose the current climate that Indigenous Australians face. Before the referendum, I spoke about the Redfern Speech when lecturing to an undergraduate class. I was met with a sea of blank faces. Only a single mature-age student had heard of Keating’s speech, let alone read or watched it! This (among a plethora of other examples that I will address below) spoke volumes about where our nation was at and gave me little faith that there would be a majority ‘yes’ vote.

The result of the referendum confirmed that we, the citizens of so-called Australia, are a long way from respecting First Nations peoples and accepting OUR lands were stolen, and a very long way from endorsing the modest, but critical, proposal for a Voice to Parliament. ⁴

Back in 1988, I was a teenager at the Barunga Festival, ⁵ listening to all the ‘talking politicians’ ⁶ promising Treaty, and filled with euphoria that we were on the cusp of significant change for Indigenous people of this country. Then Prime Minister Bob Hawke was presented with a bark painting ⁷ containing a statement outlining Aboriginal political objectives. This significant document articulated a comprehensive list of rights and aspirations crucial to Aboriginal communities at that time. ⁸

This statement was a powerful assertion of Aboriginal rights and aspirations, encapsulating the desire for autonomy, equality and recognition within the broader Australian society. It marked an important moment in the ongoing struggle for Indigenous rights and self-determination in Australia’s history and then Prime Minister Hawke said he wanted to settle a treaty between Aboriginal and other Australians by 1990. ⁹ This promise is yet to be fulfilled and, like many of the promises to follow, are nothing but token gestures! However, the Hawke government did pass the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) to establish the Aboriginal and Torres Strait Islander Commission (ATSIC), a statutory authority to both represent, and deliver services to, Aboriginal and Torres Strait Islander people.

Some years on, the Keating government continued this work, making reconciliation a key policy initiative and building from the recent publication of the final report of the Royal Commision into Aboriginal Deaths in Custody ¹⁰ (handed down in April 1991) and following the establishment of the Council for Aboriginal Reconciliation (in December 1991). ¹¹ Keating’s 1992 Redfern speech ¹² aimed to reassure Australians about the implications of the Mabo decision ¹³ and to garner support for the reconciliation process. He emphasised the importance of recognising Aboriginal and Torres Strait Islander peoples’ connection to the land and called for a fair and just approach to native title rights. His message exemplified the framing of reconciliation as a national project that was both morally imperative and a mechanism for national renewal. By invoking the concept of ‘a fair go’, Keating appealed to the Australian sense of justice and fairness, arguing that recognising native title was consistent with these values. This speech marked a significant moment in Australia’s efforts towards reconciliation and recognition of Indigenous rights.

Looking backwards: Indigenous Australians and Howard’s legacy

However, John Howard’s victory over Keating in 1996 set off 11 years of racist policies and disinterest in Indigenous rights and self-determination. Throughout his prime ministership, Howard stirred up and fuelled existing hatreds and likely influenced those who were previously indifferent, to develop a fear of, and resentment towards, Aboriginal and Torres Strait Islander people. Key moments that demonstrate how this influence was wielded are discussed, chronologically, below.

Abolishing ATSIC

Howard launched his tirade against Indigenous self-determination in his first months as Prime Minister. In April 1996, based on unfounded accusations of fraud, he announced the appointment of a ‘Special Auditor’ to examine the financial documentation of ATSIC. ¹⁴ The audit was suspended by the Federal Court due to the Minister giving directions found to be beyond the power conferred ¹⁵ and no fraud was found in the case of 95 per cent of organisations. ¹⁶ In May 1996, Howard nevertheless proceeded to undermine ATSIC further by announcing a cut of $470 million from its budget. ¹⁷ This led to a 30 per cent reduction in programs, ¹⁸ forcing ATSIC to close a raft of community and youth support services, including women’s centres. ¹⁹

Heavy scrutiny of ATSIC continued. In November 2002 the Howard government announced a $1.4 million review, ²⁰ which recommended reforms including strengthening of the regional council structure and the election of local officials. ²¹ While the review committee did not recommend abolishing ATSIC, the Howard government went ahead with abolition in June 2005. ²² The democratically elected body was replaced by the National Indigenous Council – composed of Aboriginal advisers hand-picked by the Howard government. ²³

We have heard all the reasons why ATSIC was executed. For example, ‘Indigenous people don’t support it’, ‘it was a failed experiment’ and many other victim-blaming excuses bundled up in racist tropes. ²⁴ However, there is evidence to suggest that ATSIC was defunded to silence an ‘opposing view’. ²⁵ The body was a vocal critic of government performance in Indigenous affairs. It developed policy that reflected the position of the majority of Indigenous peoples. It did so in key contested and contentious areas, such as native title. ATSIC’s position often conflicted with the government’s, and it was able to maintain a focus on a rights-based agenda in a period where federal government policy was one of ‘practical reconciliation’. ²⁶

I personally had insight into ATSIC and thought it had potential to be a vehicle for Indigenous people to influence change, not only in government but also in the Australian public, and its respect of our place as the First Peoples of this country. I was duly elected Chair of the Yilli Rreung Regional Council (ATSIC) by the Indigenous people in my Council’s electorate. ²⁷ The Regional Council’s representatives were notably diverse, comprising duly elected representatives from various backgrounds. This included survivors of the Stolen Generations, individuals from urban areas, town camps and remote communities. Each representative brought forward their unique perspectives and knowledge of their people, families, friends, culture, lands and the realities of their daily lives, ensuring that the Council’s advocacy and policy work was deeply informed and representative of the community’s diverse experiences. These perspectives and knowledge were there to advise government and make critical assessment of things affecting our communities.

The abolition of ATSIC by Howard halted this focus. Since its hiatus, issues of Indigenous concern have been easily pushed aside and there has been little or no genuine input by the Indigenous community into Australian government policies affecting Indigenous Australians. ²⁸

Waging a war on native title rights

John Howard’s focus in May 1997 turned to native title rights, releasing his ‘Wik 10-Point Plan’. ²⁹ This outlined amendments to the Native Title Act 1993 (Cth) in response to the High Court’s recent decision in Wik. ³⁰ It is well-recognised that the decision merely acknowledged a pastoral lease and native title could coexist, and specifically stated that if there is inconsistency between native title rights and pastoralist rights, the native title rights must yield. ³¹ Yet, Howard’s deliberate mischaracterisation of the judgment evidenced his use of Indigenous land rights as a political plaything.

On 4 September 1997, John Howard was interviewed on the ABC’s 7:30 Report and produced a map of Australia with 78 per cent of the land mass coloured ‘brown’. ³² He stated that

the pendulum has swung too far in one direction ... what I have done … is to bring it back to the middle. … [T]he Labor Party … [is] effectively saying that the Aboriginal people of Australia should have the potential right of veto over further development of 78 per cent of the land mass of Australia. ³³

Howard defended his plan at the 1997 Reconciliation Convention, banging the lectern, referring to centuries of dispossession as merely a ‘blemished chapter in our history’ and shouting at the audience that (so-called) ‘symbolism’ will deliver nothing. ³⁴ Members of the audience famously turned their backs as he spoke.

The native title amendments outlined in the Wik Plan were passed by Parliament, ³⁵ but decried by the international community as racist. ³⁶ The United Nation’s Committee on the Elimination of Racial Discrimination found that the amendments appeared ‘to create legal certainty for governments and third parties at the expense of Indigenous title holders’ and raised concerns with ‘the lack of effective participation by Indigenous communities in the formulation of the amendments’. ³⁷ Evidently, Howard had minimal concern for Indigenous Australian voices.

Casting reconciliation aside

From 1999, Howard explicitly displayed his lack of interest in reconciliation. In August of that year, he officially denied a national apology for members of the Stolen Generations, with Parliament instead issuing a statement of ‘sincere and deep regret’. ³⁸ His choice not to attend the Bridge Walk for Reconciliation ³⁹ confirmed his position as he stated the following day ‘we don’t think it’s appropriate for the current generation of Australians to apologise for the injustices committed by past generations.’ ⁴⁰ While Howard touted ‘practical reconciliation’ over ‘symbolism’, many have criticised this as stifling conversation on deeper structural change. ⁴¹

Self-determination rejected

Recently released Cabinet papers from the National Archives of Australia show that in 2003, the Howard government was also working hard to undermine the recognition of the right of Indigenous peoples to self-determination. Cabinet collaborated with the Canadian government to oppose the inclusion of the language of ‘self-determination’ in the United Nations Declaration on the Rights of Indigenous Peoples (‘UNDRIP’). ⁴² In September 2007 both Australia’s (under Howard’s orders) and Canada’s delegates voted against UNDRIP. ⁴³

The final act of intervention

Howard’s final, and perhaps most destructive, act to undermine the agency of Indigenous Australians came in June 2007 when he launched his ‘emergency intervention’ into the Northern Territory in response to the Little Children are Sacred report. ⁴⁴ Six weeks later, the Northern Territory Emergency Response Act 2007 (Cth) was passed, giving the government power to acquire Aboriginal land for five years and hold back 50 per cent of all welfare payments for necessary items. The legislation included exemptions from the Racial Discrimination Act 1975 (Cth). ⁴⁵ As is well known, the intervention has been heavily criticised locally and internationally as coercive, discriminatory and lacking an evidence base or consultation with communities. ⁴⁶ While Howard was ousted in November 2007, the intervention lasted under the Labor governments of Rudd and Gillard until 2012. ⁴⁷

Political voices stifled

Indigenous participation in mainstream politics has done little to challenge the acts of successive governments to undermine Indigenous representation and self-determination. There has always been opposition and resistance to any recognition of us as the First Australians and/or of any equity of rights that we should receive as citizens. So much so that Senator Neville Bonner AO, the first Indigenous Australian to enter the federal Parliament, ⁴⁸ was quoted as saying:

I would not recommend with a clear conscience that Indigenous people join any one of the major political parties, because political parties in this country want bottle drawn seats, hands in the air at the right time. You have no freedom to express yourself against the party, I can tell you. ⁴⁹

Despite Indigenous people representing many of the political parties at all levels of politics, the internal politics and the limited number of Indigenous representatives leaves them, although well-intentioned, ‘one out’ in attempting to make real change to the systemic biases at all levels.

Looking around: Our national fabric

The racist actions of governments, media, and the big end of town filter into our culture and become sewn into our national fabric. I have felt this personally as a Larrakia, Wadjigan and Central Arrernte man. Despite a perception that longstanding commitments to progressive education and equity initiatives would generate change, racism remains pervasive even in the most apparently enlightened places. My own recent experiences of racism in an elite institution have highlighted for me the longstanding legacy of racism in Australia and the role of institutions in maintaining it. ⁵⁰ I have found that, despite working with people who have had an elite education and have read everything, the biases are the same as those who have not had these privileges, if not worse.

In my case, in circumstances that have been publicly aired, I received an email which had a shared Dropbox file from a colleague. In the file, there among several documents, was one which was specifically about me. It made several remarks that I considered to be racist, all of which were directed at me. ⁵¹ The response from both my colleague and the institution made me feel stressed, bullied, hurt and humiliated. ⁵² To make matters worse, I have experienced ongoing failures in the university’s processes – structural failures that the university itself has acknowledged. ⁵³ This experience, which is ongoing, has made me realise how ingrained racism is towards Indigenous people. It’s the bedrock of the education of this nation and the ongoing conditioning of our future leaders’ minds.

Despite the promise of an inquiry and a ‘range of initiatives’ to address my experiences, ⁵⁴ none of this has helped me heal. I have not been given an apology for what I deemed as racist. Amid all this, I have felt that I had to stay and fight, to make a stand for change in a legal learning institution that will otherwise continue to form the racist cognisance in the minds of our future leaders. Our lawyers, judges, politicians and so on are subject to subliminal messaging in their education that has an impact of automatic and controlled components of racial prejudice being installed.

But I realise that the foot soldiers of settler colonialism in these places are strong on keeping their traditions alive. ⁵⁵ People of colour who fight for change in these institutions are battling an enemy masked with allyship, giving support, but only as long as it is on their terms. We are fighting a losing battle!

In what has happened to me over the past few years, I see clearly what Pat Anderson AO has long cautioned against: the danger of governments and institutions that speak the language of goodwill while failing to deliver meaningful change. As reflected in her public remarks following the Uluru Statement from the Heart Dialogues, First Nations people have grown weary of waiting for action and of hearing the same promises repeated without structural reform. Her message – that communities are exhausted by being ignored and demand change that is real, not rhetorical – resonates sharply with my own experience inside these systems. ⁵⁶

This weariness finds its theoretical frame in Professor Aileen Moreton-Robinson’s analysis of the ‘white possessive’. ⁵⁷ She reminds us that the possessive logic of patriarchal white sovereignty operates not only through open domination, but also through the liberal embrace that says, effectively, ‘we include you, but only on our terms’. ⁵⁸ It is here, in this insistence on order over justice and control masked as inclusion, that we encounter the most enduring obstacle.

The greatest barrier is not only the openly racist figure, but the moderate institution or individual that insists on recognition without relinquishing power. This posture – framed as goodwill but rooted in control – ensures Indigenous voices remain contained, delayed, or silenced. It is this logic of refusal, disguised as progress, that suffocates the possibility of transformation.

I say this without fear: the embedded state of racism in this country is all too clear in majority views of Australians on Aboriginal and Torres Strait Islander issues – and it manifests in the same stereotypes the Howard government played on. The ANU Centre for Social Research and Methods undertook a detailed analysis of the 2023 Voice Referendum and related attitudes. ⁵⁹ It highlighted that four in five Australians feel proud of First Nations cultures, ⁶⁰ and believe that the federal government should help improve reconciliation and undertake formal Truth-telling processes. ⁶¹ Even after the referendum, almost nine out of 10 Australians think ‘[i]t is important for First Nations peoples to have a voice/say in matters that affect them’. ⁶² Further, three quarters of ‘No’ voters (76 per cent) agreed with the statement. ⁶³ But these beliefs are underpinned by something more nefarious.

Despite all the available statistics on structural inequality such as in the legal system, education and health, more than a third of Australians think that Aboriginal and Torres Strait Islander peoples are treated equally to other Australians. ⁶⁴ Almost half think that recognising land rights and native title is unfair to other Australians. ⁶⁵ Shockingly, while almost nine in 10 Australians think that Aboriginal and Torres Strait Islander people should be able to decide for themselves about their way of life, half think that in the long run it would be best for Aboriginal and Torres Strait Islander people to be completely assimilated in Australian society. ⁶⁶ This is cultural arrogance gone mad. What’s more, slightly more than half agreed or strongly agreed with the statement ‘[i]f Aboriginal and Torres Strait Islander people tried harder, they could be just as well off as non-Indigenous Australians.’ ⁶⁷

What this shows is that while Australians say they want to listen, their propensity to do so, or to take action on what Indigenous Australians tell them, is infected by racist attitudes propagated through the media, governments, the education system and Australia’s code of silence. ⁶⁸ Its ‘racist culture’ towards its Indigenous people.

Looking forward: What now?

Some 33 years ago, the Report of the Royal Commission into Aboriginal Deaths in Custody (‘RCIADIC’) ⁶⁹ was handed down but it has been ignored. ⁷⁰ Much of the report remains relevant, including the chapter emphasising the importance of Indigenous self-determination. ⁷¹

Two decades after the RCIADIC, the Productivity Commissioner Romlie Mokak echoed these sentiments in the Commission’s first three-yearly review of government action on the National Agreement on Closing the Gap. ⁷² The report found governments may have failed to engage seriously with the structural issues that lead to gaps in life expectancy, education and socio-economic status. ⁷³ Commissioner Mokak said ‘[n]othing will change until this model of partnership, based on genuine power sharing, becomes the rule and not the exception’. ⁷⁴ Further recommendations were made that rest on the idea of co-design, and greater sovereignty for Indigenous people to close the gap. This is what the mere request from Indigenous Australia for a Voice was all about!

And despite these recommendations made year after year, we continue to be worn out and traumatised by having to speak on racism over and over. While the Yoorrook Justice Commission process is so important, this was the case when I gave evidence there on decades of inaction and racism in the legal system. ⁷⁵ This is something I have spent most of my life speaking to, but where is the progress?

Indigenous Nations of this country have known since invasion that racism is the vehicle to make us feel inferior, less worthy. This strategy is nothing new. We need to take stock and look at ourselves and how we have crippled our own agendas by allowing political parties to appoint their own people for their own agendas and dividing us deliberately. We as Indigenous people agree on 80 per cent of things affecting us, but we tend to focus on the 20 per cent that we don’t agree on. And worse, we do it in public, at critical times!

With mixed emotions, I remember what my grandparents told me. They said that they endured and fought the pain and suffering of government policies of eradication, protection, assimilation, self-management and reconciliation so that I didn’t have to. The realisation sets in that, from a young Indigenous man with aspirations to make a difference for his people by studying law, to some 30 years later as a grandfather, I know my grandchildren will have to negotiate a racist nation that won’t afford them justice because of their Indigenous heritage, and that they will have to take up the fight!

The defeat of the Voice Referendum cannot be understood in isolation. It is the continuation of a trajectory set in motion decades ago, when governments dismantled representative structures, narrowed the scope of reconciliation, and treated Indigenous rights as negotiable within the confines of settler politics. The Howard government’s interventions made this explicit, but successive governments, institutions, and sectors have carried forward the same logic of containment.

At the heart of this failure lies silence. The silence of a public that has forgotten – or never been taught – pivotal moments such as the Barunga Statement or the Redfern Speech. The silence of institutions that acknowledge ‘process failures’ while refusing to name racism. The silence of a nation that professes pride in First Nations cultures, yet votes against even modest recognition. These silences are not neutral absences; they are active instruments that sustain the structures of colonial power.

This same silence is evident in current justice debates. Across jurisdictions, punitive bail laws have been expanded in the name of ‘community safety’. Yet the effect is predictable: further over-incarceration of Aboriginal and Torres Strait Islander people and the widening of the very ‘gap’ that governments profess wanting to close. Two of the updated 2020 Closing the Gap targets, Target 10, which aims to reduce the rate of Aboriginal and Torres Strait Islander adults held in incarceration by at least 15 per cent by 2031, and Target 11, which commits to reducing the rate of Indigenous children in detention by at least 30 per cent in the same timeframe, are well off-track. ⁷⁶ Instead of pursuing justice through evidence-based reforms – such as raising the age of criminal responsibility and investing in community-led diversion – governments legislate in ways that guarantee these targets will fail.

These contradictions expose the emptiness of political commitments to justice, showing how easily the rhetoric of Closing the Gap is undermined by policies that guarantee its failure. Bail reform, deaths in custody, and incarceration rates are not peripheral matters – they are the most visible indicators of whether this nation is prepared to reckon with truth.

What the referendum revealed is the persistence of a colonial mindset in which Indigenous presence is celebrated symbolically but denied substantively. This is survival within coloniality – the capacity to endure in hostile structures that refuse transformation. But survival is not enough. If legal education, political systems, and national narratives are ever to be just, they must move beyond silence, beyond tokenism, and beyond survival. They must reckon with truth, remember history, acknowledge sovereignty, and embed Indigenous law and voices as foundational to the Australian polity. Only then can transformation begin.

And all we asked for on this occasion was an advisory body, a mere advisory body!