West of Gosford there is a land on which there once lived an Aboriginal people. There is no living descendant of that people. Some died from natural causes. Most, however, were killed in hunting parties, organised after church on Sundays – much like the English fox hunt.
This story is unexceptional. Books have been written tracing the history of our First Nations people – the facts are uncontroversial. Our First Nations people have been massacred, kidnapped, denied their culture, and dispossessed of their land. It is unnecessary to deal with the motives behind that treatment; it occurred.
But there is more to the Indigenous Voice to Parliament than assuaging the guilt or moral imperative. In the course of research as a judge, I have followed studies on social exclusion, particularly by Professor Roy F Baumeister. The effect on behaviour caused by social exclusion is statistically among the largest effects of any physical stimulant studied in Baumeister’s career. Social exclusion directly affects the behaviour of individuals, but these effects do not depend on emotional distress.
Baumeister said his of his findings, “[They] have helped shed light on both the inner and outer responses to exclusion. They help illuminate why many troubled individuals may engage in maladaptive or seemingly self-destructive behaviours. They may also have relevance to the responses of groups to perceived exclusion from society as a whole.
“Although there are some exceptions, such as the intellectually vigorous culture maintained by Jews during the centuries of discrimination and ghettoisation, many groups who felt excluded or rejected by society have shown patterns similar to those we find in our laboratory studies: high aggression, self-defeating behaviours, reduced prosocial contributions to society as a whole, poor performance in intellectual spheres, and impaired self-regulation.”
The exception that proves the rule, the Jewish community has, over the centuries, developed countermeasures to the exclusions meted out by general society. Over 3000 years, the Jewish community has developed its own courts, its own welfare system, its own sporting clubs, and its own community centres. Those institutions overcome, for the Jewish community and its members, the effects of social exclusion by empowerment, and cultural self-confidence and support.
In the years that First Nations people have suffered, they have not had the resources to develop similar institutions. An examination of programs that have been successful in redressing some of their disadvantage confirms the importance of this issue. Two programs in NSW wholly reversed the statistics on criminal conduct, incarceration, employment and education. One program, which involved both the police and the local elders, gave the youth in Redfern a sense of belonging, of empowerment and of being valued.
Baumeister’s findings correlate almost precisely with the areas in which Australia needs to close the gap most urgently. Not every member of the Aboriginal and Torres Strait Islander communities have suffered, at all or in equal proportions, the level of social exclusion that most have. Yet, social exclusion, discrimination and the correlative disempowerment directly reduce academic performance, in speed, accuracy and comprehension; decrease self-regulation for longer-term benefits, for example, food choice and understanding consequences; increase antisocial behaviour; and involve a greater likelihood of criminal behaviour.
The Voice is not a panacea. It will not, in and of itself, end the social exclusion of First Nations people. Yet it is a recognition that First Nations people have historically been excluded, in large measure, from an otherwise rich and diverse society. To require, as it envisages, merely that First Nations people will be consulted about issues which affect them, ensures the level of social exclusion is diminished, ever so slightly, and that governments have the opportunity to provide the resources to First Nations people to introduce the kind of “counter social exclusion” facilities that our community enjoys.
The constitutional proposal involves only one requirement: consultation with representatives of the First Nations. It does not provide a right of veto. It is not the only requirement for consultation. There is, for example, a requirement on the Commonwealth to consult with states on the appointment of High Court judges. No one would or could suggest that such an obligation vetoes the power to appoint.
The Constitution is designed for general principles. The details are in statutes – and must be; otherwise, it would be next to impossible to alter the details. Can you imagine a referendum every time an electoral boundary was changed?
In the case of the Voice, the details will be debated in Parliament. Nevertheless, the basis for the statutes and the details are found in three reports, including the report of the Joint Select Committee on Constitutional Recognition, co-authored by our own Julian Leeser MP.
I have already dealt with the lack of any power of veto or the notion of a third chamber. The representatives of First Nations will be elected, presumably under the Australian Electoral Commission, which operates robustly and independently of government and conducts elections for a number of other organisations, including trade unions.
The constitutional proposal, if passed, will not hinder any other steps that governments may take. Those steps – dealing, as they must, directly with educational resources, youth engagement, the overrepresentation in incarceration and living standards – are essential. In my view, they are symptoms of the social exclusion suffered by most First Nations communities, and the Voice will allow the direct measures to be more effective.
The view expressed that this constitutional alteration either cedes land or affects land rights, is, not to be too cruel, nonsense. Similarly, the proposition by some, that nothing short of a treaty and sovereignty will suffice, argues that the perfect should stand in the way of the good. Whether there is a treaty and what would be the terms of such a treaty is neither advanced nor compromised by acceptance of the Voice.
The Jewish community, given its history of social justice and the way it has dealt with its social exclusion over the years, needs to support, and be seen to support, the Voice and to campaign for it. It is a moral imperative; and it is a first step toward inclusion and empowerment of First Nations people, which will have immense practical and positive effects.
Justice Stephen Rothman is a judge of the Supreme Court of New South Wales. These are his own views, and are overwhelmingly informed by his experience as a judge and by his previous leadership in the community.