“Hang on,” you might object, “everyone knows that there were, and are, only six states. What’s this nonsense about there being a seventh?”

Well, the framers of the Constitution wanted to recognise all of the smaller sovereign states that might make up the larger whole. So, the list included New Zealand. Indeed, when in 1902 the Commonwealth Parliament determined who could vote in federal elections, it singled out New Zealand’s Maori people for inclusion – while excluding the vast majority of Australia’s own Indigenous peoples.

This is breathtaking.

If you are wondering what any of this has to do with the proposed referendum about the Voice to Parliament, then consider this.

Those who put together the Constitution never finished the job. They left out those with the greatest claim to sovereignty of all.

Now we have the chance to finish the job – to make our Constitution whole.

We are on the cusp of resolving one of the most profound questions we face as ­citizens: will we afford constitutional recognition to the descendants of those First Nations peoples whose sovereignty was ignored by the European colonists?

A number of arguments have been put forward as reasons to oppose constitutional recognition of First Nations peoples in the form of a Voice to Parliament. Those arguments include that a Voice:

• Weakens First Nations’ claims to sovereignty.
• Will not lead to a tangible ­improvement in the lives of Indigenous peoples.
• Is “racist” and undemocratic in that it affords a privilege to one “race” over all others.
• Will increase legal uncertainty – especially when interpreting the Constitution.

In every case, framing the debate in terms of sovereignty helps us to see why these objections, while sincerely made, are not well founded.

It is feared, by some, that constitutional recognition will weaken the claims to sovereignty made by First Nations peoples. However, the Australian Constitution specifically preserves the sovereignty of each of the states that were recognised at Federation. Furthermore, all of their state laws remain intact. The only effect of the Constitution is to render state laws inoperative to the extent that they are inconsistent with valid Commonwealth legislation. Rather than destroying sovereignty, the Constitution recognises and preserves it – even as earlier laws become attenuated.

It might be objected that the First Nations of pre-colonial Australia were not “sovereign states”. However, they meet all of the accepted criteria. They may have been small – but size of territory or population does not matter (think of Monaco, Liechtenstein, Tuvalu and so on – all states). The First Nations had clearly defined borders. They had distinct laws – and processes for their enforcement. They traded – domestically and internationally (for example, centuries of trade between the Makassan people of modern Indonesia and the Anindilyakwa people of the Groote Eylandt archipelago, and others). They fought wars over people and resources and to defend their territory. All of this was anticipated by British law and policy. It was only blind ignorance and prejudice that stopped the colonists recognising the sophisticated array of states they encountered here.

A second objection is that constitutional recognition will do little or nothing to “close the gap”. Surely, Indigenous peoples have a far better idea of what is needed to address the enduring legacies of colonisation than do the rest of us. Certainly, they could not do a worse job than we have so far. So, I believe a Voice to Parliament will make a positive difference in the material circumstances of First Nations peoples. However, while important, this misses the point.

Imagine someone heading out into remote Queensland in 1899 – to tell the people living there that remaining as a crown colony might lead to better outcomes in the future. There would have been a riot in response to the suggestion that Queensland should be left a colony while the rest of the colonial states formed a federation. Even the West Australians decided to join – not because Federation guaranteed a better outcome for the people of each state, but because of the dignity it conferred on citizens of the newly established nation. It’s the same for those forgotten or ignored when the first round of Constitutional crafting was done.

The next “bad” argument claims that the creation of a Voice confers a benefit on one group of people because of their “race” – and that to do so is racist and undemocratic. Once again, the argument fails to take account of First Nations peoples as members of sovereign states. Those states existed – certainly in Natural Law (and probably more formally) for centuries prior to colonisation. The citizens of those states were exclusively Indigenous – not as a matter of racial policy but as a simple fact of history. The same would have been true of other ancient states in other parts of the world which, at one time or another, would have been made up of groups of people related through kinship and so on.

So, if we see our late recognition of the peoples of the First Nations through the lens of sovereignty and citizenship, there is necessarily going to be overlap between that citizenship and membership of a distinct group of related people.

This is not about privileging one “race” over another. It is simply acknowledging the fact that the citizens of the First Nations that we hope to recognise are all bound by a kinship grounded in deep history.

Finally, we come to the argument that an amendment to the Constitution will cause legal uncertainty – with the High Court spending wasted hours in interpreting the new provisions of an amended Constitution. If this is a valid reason for not amending the Constitution, then it is better that we should not have had a Constitution at all. Every clause in the Constitution of 1900 is open to interpretation by the High Court. Indeed, the High Court has spent a vast amount of time interpreting provisions (especially concerning the valid powers of the commonwealth). So, yes, an amendment might lead to disputes in the Federal and High Court. So what? That happens every day in relation to sections of the Constitution that are more or less taken for granted.

Finally, I am happy to see a decreasing number of people are arguing that the voice will be a “third chamber” of parliament. It will not. The Voice will be able to make representations and to advise – using whatever mechanisms the Commonwealth Par­liament prescribes. The Voice will decide nothing on its own. It cannot veto any act of parliament or decision of government.

First Nations peoples have asked for something very modest. They want to be recognised. They simply want to be heard in relation to matters that have a direct bearing on their lives.

Our Constitution is a pretty good document. However, its ­authors left something out. While recognising the sovereignty of all others (even Fiji was in the mix for a while), they overlooked those with the best claim of all.

Imagine a fence made without a gate, a car without brakes and a cake without icing. They’ll work well enough. But they’re not complete. That’s the deficiency in our Constitution – it also works well enough, but it is not complete.

Let’s recognise what was forgotten. Let’s finish the job.

This article was first published in The Australian.

Many believe that sport transcends politics. But it can also be used as a political tool to distract attention from human rights abuses, making sportspeople and fans complicit.

Legions of football fans with faces daubed in their national colours fill the spotless new stadium and explode into a roar when their team lands the ball in the back of net at the FIFA World Cup 2022 in Qatar.  

From the promotional video alone, the scene seems to exemplify what people love about big sporting events: the emotional highs and lows; the vibrant carnivale atmosphere; the fierce competitive spirit; the skill of the athletes.  

But to the millions of migrant workers in Qatar, many of whom helped build the very stadiums that are to host the games, the World Cup likely means something very different.

Qatar has long been criticised for the kafala system of sponsorship-based employment for foreign workers, which has led to underpayment, wage theft and unsafe working conditions, leaving workers powerless to change their employment circumstances. Qatar also has a history of women’s oppression, with women requiring permission from a male guardian to exercise many basic rights, such as pursuing higher education, working in certain jobs or traveling abroad. LGBTI people have also been subject to discrimination and abuse in the country, even on the lead-up to the World Cup.  

So it is no accident Qatar is spending billions to host the World Cup, with estimates suggesting the government has pumped over $US 220 billion into the event – more than fifty times what Germany spent in 2006 when it hosted.  

This is ‘sportswashing.’ The Qatari government is hoping it can appropriate the positive associations fans have with football to elevate its own status on the international stage and distract from its ongoing human rights violations.  

And Qatar is not alone in the practice: Saudi Arabia, another nation with a problematic human rights record, has spent over $US 2 billion on its LIV Tour for golf; and China, criticised for its ongoing persecution and internment of its Uyghur minority, spent billions hosting the 2022 Winter Olympic Games.

But what’s so bad about a country with a troubling human rights record supporting or hosting an unrelated sporting competition? Does watching or travelling to that country to attend the competition make spectators complicit in human rights abuses? And shouldn’t sport be kept separate from politics? To answer these questions, we first need to be clear about what sportswashing is. 

What is sportwashing?

Sportswashing refers to states – sometimes individiuals or corporations – that seek to use sport to bolster their image by distracting from their wrongdoing. It’s typically not just a matter of hosting games or supporting a national team but rather pumping money into sport specifically to change people’s attitudes about them. 

Why sport?

Sport is more than just entertainment. It exemplifies what many people believe to be noble or aspirational virtues: discipline, hard work, individual excellence, teamwork. For spectators, sport generates intense feelings of belonging and a shared identity that verges on the sacred; a win for one’s team elevates oneself and one’s whole community. Sport also reaches a wide audience, including people who may not actively follow politics or world affairs.

So if a regime wants to bolster its reputation around the world, it’s hard to beat tapping into the positive associations people have with sport, especially high profile sports like golf, football or the Olympics. And all you need to do it is enough money. But what does all this money really achieve? 

First impressions

What springs to mind when you think of Qatar? For many people whatever it is will be informed by what’s in the media. And if the media has been focusing on Qatar’s human rights violations, it’s these that can define their impression of the country.   

This is why nations like Qatar are so keen to offer you new impressions. One function of sportswashing is to saturate the news – and internet search results – with topics other than human rights. If people know little about Qatar, and the World Cup pushes its human rights violations to the second page of Google’s search results, then fewer people will be made aware of them.  

There’s another upshot of sportswashing: given many people have powerful feelings about sport, if the majority of the news they hear about Qatar is connected to their beloved game, then their feelings for sport can bleed over into their impression of the country.  

Once that positive connection with sport is established, it can come to clash with negative associations they have about human rights violations, causing cognitive dissonance, which describes a tension between two opposing ideas. Most people tend to dislike the feeling of dissonance and will seek to eliminate it, often by ejecting one of the dissonant thoughts. Sportswashing nations hope that the ejected thought is the one about human rights rather than sport. 

This is where sportswashing becomes ethically problematic. To the degree that it distracts from wrongdoing, such as human rights violations, it can contribute to the perpetuation of that wrongdoing. Countries are often motivated to enact reforms when they experience pressure from other states, especially large democractic states that are reacting to internal public pressure. If the population is distracted by sport, then public pressure can wane. 

Just not cricket

Sportswashing is insidious, as it co-opts something that is otherwise benign and makes those who innocently endorse it complicit in achieving a political end.

But just because someone was not aware of, or chose to ignore, the political dimension of the sporting event, that doesn’t mean they are absolved of responsibility. Sadly, sportswashing makes anyone involved in it complicit to some degree. 

If we believe that our ethical obligations extend to those parts of the world that we affect through our actions, then we must consider how our spectating or participating in a sportswashing event might contribute to perpetuating human rights abuses. If we are paying to attend a sportswashed event, we are contributing financially to enabling that event to take place, and through our attendance, we are normalising that activity for others. 

There is an even greater ethical weight placed on the shoulders of sportspeople, who are often viewed as role models and whose behaviour can be seen to normalise certain values. This is why we place such emphasis on sportspeople behaving responsibly on and off the field, such as in nightclubs or in their private relationships. 

If a sportsperson accepts money to participate in a sportswashed event, that sets a standard for others. And if they are aware of the ethically problematic nature of their hosts, then this opens them to a charge of hypocrisy, as in the case of Phil Mickelson, one of the world’s top golfers, who accepted $US 200 million to join the LIV Tour despite admitting he was aware of Saudi Arabia’s “horrible record on human rights”. 

Washing sport

However, there are ways of pushing back against sportswashing. The first is to refuse to support it financially, such as by not buying tickets to the events or subscriptions to the coverage in the media. For some, this will mean missing out on watching a sacred sporting event, and it’s important not to understate how big a cost that might be for them.  

However, if they choose to watch, they can consider how to reduce or nullify the impact of the sportswashing. That could involve informing themselves and others about the true state of affairs, reducing the informational distortion caused by sportswashing. In fact, there is evidence that Qatar’s World Cup sportswashing gambit may be backfiring by drawing attention to the very human rights issues it hopes to distract from. 

Sportspeople have an even greater responsibility but also a greater potential impact for good. Some have refused to participate in sportswashed events, such as golfer Tiger Woods, who reportedly turned down an offer in excess of $US 700 million to join the Saudi-backed LIV Tour.  

In some cases, participating in a sportswashed event can be offset if the individuals work to counter the sportswashed narrative, as in the case of the Australian Soccerros, who released a protest video about human rights in Qatar. While they are playing in the World Cup, they have used their platform to support migrant workers and the decriminalisation of same-sex relationships in Qatar. Football Australia also released a similar written statement. Arguably, more Australians now know about Qatar’s human rights record than if the state had never been chosen to host the World Cup. 

When states are involved in funding sport, then sport can no longer be said to be removed from politics. Through sportswashing it becomes a political tool. If we want to maintain sport as a pure and sacred pursuit, then we must consider how we choose to engage with it and how we might avoid or counteract the power of sportswashing to distract or normalise wrongdoing.  

Standing in the middle of Washington Square Park in downtown Manhattan, on the 24th of June, I propelled a sign skyward that read: Abortion Is Healthcare. There were thousands of other slogans, on posters and placards, all being hoisted repeatedly by protesters equally aggrieved by the overturning of Roe v. Wade. 

Earlier that same day, at 10 AM, the United States Supreme Court had overturned the ruling of the original monumental case. Since 1973, Roe v. Wade had protected the constitutional right to privacy for nearly half a century – ensuring that every woman in the US could obtain an abortion without fear of criminal penalty. But the repeal of this landmark case has unfortunately handed the regulation of abortion back to each individual state. And now, approximately 20 US states are set to once again criminalise or entirely outlaw access to abortions, despite two-thirds of its citizens being in favour of abortion.  

So how will this loss of privacy constrain women’s autonomy?

The right to an abortion protects women from bodily harm, insecure financial circumstances, and emotional grief. The medical procedure allows a woman to maintain bodily autonomy by affording the choice to decide when, or if, she ever wants a child. Abortion acknowledges a woman’s right to live life as she intends. Banning abortion severely compromises that choice. Further, it does not reduce abortion rates but instead forces women to seek abortion elsewhere or by unsafe means. In 2020, over 900 000 legal abortions were conducted in the United States by professionals or by mothers using medication prescribed by physicians.

Banning abortion places a hefty burden on women, suppressing their autonomy.

The Legal Disparity Pre-Roe

Before Roe, women in the United States had minimal access to legal abortions, which were usually only available to high-income families. Illegal abortions were unsafe and in 1930 were the cause of nearly 20% of maternal deaths. This is because many of them relied on self-induced abortions or asked community members for assistance. Given the lack of medical experience, botched procedures and infections were rife.  

Pre-Roe abortion bans harmed and further disadvantaged predominantly low-income women and women of colour. In 1970 some states allowed abortion. However, given the lack of national support, women were expected to travel long distances for many hours, which placed their health at significant risk. Once again, this limited access created unequal outcomes by only providing access to select women with means to travel and financial security.  

Post-Roe Injustice

Post-Roe, the outcomes appear just as grim. In a digital landscape, technology brings benefits but also comes at a cost, introducing new vulnerabilities and concerns for women. While technology equips women seeking abortion to find clinics, book appointments, and help with travel interstate, it can also amplify the persecution of women when abortion is criminalised. For example, in 2017, Mississippi prosecutors used a woman’s internet search history to prove that she had looked up where to find abortion pills before she lost her foetus. And currently, since the recent ruling, clinics are scrambling to encrypt their data, while others are resorting to using paper to protect their patients’ sensitive information from being tracked or leaked

Unfortunately, there are also concerns that data could be used from period tracking apps and location services to further restrict women from accessing abortions. In previous years, prosecutors and law enforcement have wrongfully convicted women for illegal abortions by searching their online history and text messages with friends. Now that abortion is criminalised in some states, there are worries of increased access to private information that could be used against women in court: specifically the use of third-party apps that sell information which would further isolate women and reduce their ability to receive competent care, which in some states could be accessed without their consent. 

The United States Department of Health and Human Services, known as HHS, released a statement on June 29th about protecting patient privacy for reproductive health. It states that “disclosures to law enforcement officials, are permitted only in narrow circumstances” and that in most cases, the Health Insurance and Portability and Accountability Act (HIPAA), commonly known as a privacy Act, “does not protect the privacy or security of individuals’ health information” when stored on phones. The guidance continues by suggesting how women can best protect their online information. For women to defend themselves, they must take extra precautions such as using privacy browsers, turning off locations, and using different emails.  

These additional measures are troubling as they stipulate how women receive care. Placing the onus on women, the risk of information leaking limits access to resources and further restricts the privacy and autonomy of pregnant women as it creates fear of constant surveillance.

Further, it places people seeking care at a significant disadvantage if they do not know what information is protected and what is not.  

Post-Roe, the medical landscape will also begin to shift. Abortion care is not uncommon in other procedures conducted by obstetricians and gynaecologists (OB-GYNs). Abortion care can overlap with miscarriage aftercare and ectopic pregnancies, creating murky circumstances for physicians and delaying care for patients as they wait for legal advice and opinion. In other cases, abortion care is necessary when pregnant women have cancer and need to terminate the pregnancy to continue with chemotherapy.   

By restricting abortions, many physicians will be unable to provide adequate care and fulfil their duty to patients as they will be restricted by governing laws which will hinder further practice if persecuted. Any delay in receiving an abortion is an act of maleficence, as the windows to receive abortions grow increasingly slim and the restrictions grow tighter, the process inhibits providers from treating women seeking an abortion which obstructs beneficent care. As a result, many women will lose their lives from preventable and treatable causes. 

Criminalising abortion will warp access and create unnavigable procedural labyrinths that will change the digital and medical landscape. Post-Roe United States will continue to breed fear and control over women’s lives. Criminalising abortion will isolate women from their communities and obstruct them from receiving competent medical care and treatment. Banning abortions will place an undue burden on women and will unfairly jeopardise their health and right to access care.