Australia is now a legal fiction

Australia now occupies a unique position globally. It is the only colonial settler society in the world that not only does not recognise in any way those dispossessed by colonialism, but whose citizens have actively rejected any such recognition.

In doing so, Australians have turned their backs on historical fact. “No” is not merely a denial — it is denialism. It sustains, in constitutional terms, the fiction that no-one was here before Europeans arrived, that no-one was dispossessed, that the continent was terra nullius.

Far from being a maintenance of the status quo, the success of the No campaign transforms the Australian constitution into a living lie, a rejection of historical fact in favour of white fantasy. The foundational document of Australia now deliberately, purposefully, with the endorsement of Australian voters, denies the foundational act of the Australian polity, the dispossession of First Peoples. It is now a legal fiction, and the country along with it.

There are no ifs, buts or niceties around this transformational moment. The argument that it was a constitutionally enshrined Voice, not recognition, that was rejected doesn’t stand up to scrutiny. There is no recognition without a Voice, because the recognition requested by First Peoples begins with a Voice. Anything else is a fake, one peddled primarily by old white conservatives who think recognition can be imposed on them, like invasion, dispossession and genocide was imposed on First Peoples. The No was inarguably a No to recognition.

There can be no pretence this was some sort of accidental result, or a failure of politicians or of the Yes campaign. There’ll be inevitable post-mortems of the failure of Yes. But this was a referendum around a single, simple question. There was no complexity, no litany of important policy issues, no personalities, no preferential voting — all of which feature in general elections. This was as simple as democracy gets, and the outcome was as simple as the lopsided result: Australians voted, by a large margin, to keep pretending First Peoples weren’t here before invasion, or to not care that they were.

Just as it transforms the status of Australia’s constitution, so it transforms the relationship between white Australia and First Peoples. There are predictable calls from both the prime minister and Peter Dutton that the result shouldn’t divide us. That is to deny the brutal reality of No and the strength with which it was uttered. There are no Yes voters and No voters, Anthony Albanese said on Saturday night.

Whether that’s true or not, there are First Peoples and non-Indigenous Australians, and the gulf between them has widened catastrophically because of the actions of the latter. Not merely can there now be no recognition, but there can be no reconciliation. The perpetrator of a historic wrong has slapped away a good-faith offer to move forward in unity. Despite the No camp’s claims about the “divisiveness” of the Voice, this result will permanently, or at least for generations, divide white Australia from Indigenous peoples. Calls for unity now aren’t merely hollow, they’re an insult — an offer of the “unity” of erasure and assimilation.

For people of good will in Indigenous policymaking, which definitionally now excludes any Coalition frontbencher, there is at least the way forward of building our capacity — both among white policymakers and bureaucrats and Indigenous communities — for policy development and implementation in genuine partnership, with the goal of improving the effectiveness of programs aimed at Closing the Gap. That can be achieved on the ground, and in specific policy areas, and at the state and territory level, and administratively at the federal level, but as the Productivity Commission explained back in July, that’s a hard, slow slog, with no guarantee of success due to the temptation to default to the failed, business-as-usual, top-down policy template. The failure of the Voice referendum makes it all the more critical that those efforts meet with success, but what white Australian can now talk of working in genuine partnership with First Peoples after this rejection?

For the moment, there is only this: Australia is a lie its occupants tell themselves, a fiction pandering to white privilege, an occupation craving legitimacy. It was offered that legitimacy, and it turned its back.