An innovative design idea for the Indigenous Voice to Parliament

 

                                We know what we are, but know not what we may be.

Hamlet Act 3, scene 4.

 

I have previously posted a number of times on aspects of the proposed Voice first outlined in the 2017 Uluru Statement from the Heart (indirectly link here and more directly link here). I recommend readers scan both those posts as they provide very useful background and I have not sought to traverse the ground they cover here.

 

A constitutionally enshrined Voice requires both a successful referendum and legislation to establish the Voice’s operations. A successful referendum to require a voice be established and operate can only be reversed by a future referendum. Legislation to establish such a Voice can be amended to either fine tune the initial design, or potentially to radically overhaul that initial design. The proposal below is directed to the design of the legislation and not to what would be included in the referendum question.

 

Nicholas Gruen has argued that there is a potential democratic dividend in making greater use of secret ballots within Parliament. In particular, he has argued (link here) that a panel of randomly chosen citizens should have the power to require a parliamentary vote to be retaken as a secret ballot. I recommend readers have a look at Gruen’s proposal. I find his argument persuasive and the idea attractive.

 

Thinking about it further, it struck me that the proposed Voice, and in particular the legislation establishing the design and operations of the Voice provides an ideal opportunity for the Gruen proposal to be road tested in the current parliamentary term in relation to just one of the numerous issues that Parliament deals with, namely, legislation which focusses substantially on Indigenous issues. More importantly, it would potentially provide a means by which Indigenous interests could be assured that their views have been considered and their voices heard by the whole Parliament.

 

In particular, the proposal advocated here is that the legislation establishing the Voice should include provision establishing a secret ballot mechanism that would require the Parliament to vote secretly (or revote secretly) on any proposal where a substantial majority of the Voice membership (themselves voting secretly) required such an action.

 

While I would hope and expect that the Voice will express views on mainstream legislation that impacts Indigenous citizens adversely, I would limit the operation of the secret ballot mechanism (at least initially) to Indigenous specific legislation such as the Native Title Act, the CATSI Act, the Northern Territory Aboriginal Land Rights Act, and any new legislation aimed directly at addressing Indigenous specific issues. Past examples would include the Howard Government’s 2007 legislation to impose the NT Intervention which passed with Labor support in the lead up to an election (a classic wedge strategy). Had that legislation been subject to a secret ballot, and bearing in mind that it included explicit provisions over-riding the operation of the Racial Discrimination Act, the possibility emerges that a majority of the then Parliament may well have refused to go along with the proposals emanating from the Howard Cabinet, and which were arguably not in the public interest.

 

One of the original objectives of the proponents of constitutional recognition was to address he potential for the so called races power in section 51(xxvi) of the Constitution to be used in ways which were not beneficial, and were adverse to the interests of Indigenous citizens (link here). Midway through the last decade, the Indigenous leadership on constitutional recognition were convinced by Liberal moderates that the likelihood of crafting a proposal to limit the operation of the race power to beneficial uses only would elicit opposition across the conservative political spectrum and make a successful referendum almost impossible. They went back to the drawing board and what emerged was the proposal for a Voice. In other words, the Voice is already a compromise proposal, and has been explicitly articulated as not amounting to a third chamber, and not seeking to threaten Parliamentary sovereignty.

 

The existence of a secret vote mechanism as part of the Voice would provide a means to allow individual parliamentarians to follow their conscience in the event that any attempt was made in the future to enact laws targeted negatively at Indigenous citizens. Such a mechanism would maintain the sovereignty of the Parliament. As Gruen points out, it is already used to elect the Speaker and President of the House and Senate. What it would constrain, but not necessarily veto, are the ‘sovereignty’ of political parties, their more extreme ideological views, and the influence of their unaccountable donors.

 

A Voice enshrined in the Constitution, with a legislative design that incorporates a mechanism to allow the Voice to require a secret ballot on Indigenous specific legislation (and regulations) would go a long way to signalling to distrustful First Nations that their concerns and aspirations will be considered by not just the political party or parties that control a majority in the Parliament, but by the whole Parliament. If the secret vote mechanism led to unintended consequences, it could be fine-tuned or even removed. 

It would comprise both a social justice breakthrough, lead to better policy focussed on the public interest (and not private interests or narrow political advantage) and strengthen our democratic system overall. It would also signal to the substantial and growing numbers of non-Indigenous Australians who are dissatisfied with the culture of politics today that our political leaders are seeking to respond and address the wider trust deficit which is undermining our democratic norms and culture.

Neil Westbury article on regressive changes to remote alcohol laws in the NT

 

If you have tears, prepare to shed them now…

Julius Caesar Act 3, scene 2.

 

Neil Westbury has today published an article in Pearls and Irritations (link here) that outlines succinctly the huge problems with the recent NT Government legislation relating to the regulation of alcohol in the NT, the background to the legislation, and most importantly identifies a sensible and feasible pathway forward directed to harm minimisation and respect for the rights of women and children in particular to live safe lives. His article is highly recommended.

 

Westbury has a long background in NT Indigenous policy issues, has worked for both the Commonwealth and the NT Governments, and most recently was a member of the Gilbert Review into the proposal (now withdrawn) for a Dan Murphy superstore in Darwin. I published a post summarising key structural issues raised by the review in relation to remote alcohol policy in the NT (link here). One thread in that post was an argument that the NTG was failing to act in the public interest in relation to alcohol policy, and I called for the Commonwealth to engage more proactively. Again, it is worth reading that post (and for those with a deeper interest, the Gilbert Review itself) in the context of the current developments.

 

In February, I published a post outlining my concerns at the possibility that a failure of the Commonwealth to establish a transition process out of the Stronger Futures Legislation would create a regulatory vacuum by returning us to the status quo ante (link here). That prediction has unfortunately come to pass in relation to some SFNT measures, for example Community Living Area provisions. However, I failed to predict the alacrity with which the NTG would act on the alcohol provisions.

 

In summary:

• the Commonwealth, by allowing the SFNT legislation to lapse in July this year, has sought to flick responsibility for the conditions in remote communities to the NTG;

 

• the NTG has legislated to lift controls on hundreds of remote communities and locations (the default) with an option for communities to apply for community specific alcohol exemptions.

 

A much more responsible legislative response would have been for the NTG to legislate to retain the current restrictions on alcohol within communities as the default, along with provisions for communities to apply to replace the restrictions with managed access to alcohol (this was essentially the SFNT model).

 

Why has the NTG gone down the path of lifting restrictions?

 

The ostensible reasons given by the former NT Chief Minister, Michael Gunner, for the approach taken by the new legislation were that restrictions were racist and communities should have freedom of choice (link here). This argument was refuted publicly and comprehensively by Dr John Boffa (see the Westbury article) who pointed out that the restrictions were a special measure allowed under the Racial Discrimination Act.

 

Other arguments raised by the new NT Chief Minister Fyfe and Minister Paech include that the current restrictions are not perfect (neither are our road rules!), and that they were imposed by the NT Intervention (link here). In fact, the SFNT legislation was passed by the Labor Government in 2012 and differs from the Intervention legislation passed in 2007 in being subject to, and on its face compliant with the Racial Discrimination Act (RDA).

 

That the NT Government is resorting to rhetorical sleight of hand signals that it is hiding the real reason for switching the default from restriction to free access.

 

My take for what it is worth is as follows. The NT Government has long been in thrall to alcohol interests, and drinking culture permeates all levels of NT society. The major cities and towns are strongly focussed on servicing the tourism industry. There has long been issues with visitors from remote communities (so called itinerants) coming into the major centres for a range of reasons, including access to health services, and undoubtedly access to alcohol. NT governments have struggled managing the flow of visitors for over three decades, not least because they refuse to regulate access to alcohol as it would impact the availability of alcohol to non-Indigenous tourists and Territorians alike. The issue of ‘itinerants’ and ‘long-grassers’ has long been a hot political issue in Darwin in particular. In the NT, Governments stand or fall based on the electoral results in the Darwin electorates.

 

In these circumstances, the current NT Government appears to have decided that rather than maintaining a system — based on their own reluctance to effectively regulate alcohol in towns — where remote residents who wish to drink have an incentive to come into town, they have decided to shift the problems back to remote communities. These consequences include significant violence, significant health issues and concomitant costs, risks to women and children, adverse impacts on education provision and school attendance, and the continuation of significant dysfunction within communities. See my recent post on the challenges for remote communities to get some sense of what this looks like on the ground (link here). This is the impact of the proposed policy framework from July, and all my experience tells me that it is also the intention. It is inconceivable that those advising the NTG were not aware that these consequences would flow.

 

The cynicism and hypocrisy involved in replacing the inconvenience of homeless drinkers in Darwin and other centres towns with a miasma of ongoing despair in remote communities and homelands is extraordinary. It points to a significant failure by the previous Commonwealth Government, undermines and shreds the little remaining credibility the current Labor Government in the NT, and will be a major test of the ethical and political character of the incoming federal Labor Government. 

 

As Neil Westbury argues, the Commonwealth Government ought to step up, listen to the multiple concerns emerging from Indigenous organisations in the NT, and find a way through that engages with all interests involved and most importantly avoids imposing unacceptable costs on remote communities.

 

If the new federal Government fails to act, they will be implicitly endorsing the extraordinary cynicism and hypocrisy of the NT Government and will share the responsibility for the devastating outcomes for the lives of remote community residents that will inevitably emerge. Moreover, this will not be an outcome without political consequences.

 

In such an eventuality, the guaranteed losers will be the residents of remote communities, and particularly the non-drinkers, especially women and children who daily face extraordinarily difficult challenges which most Australians can barely imagine.