We are
not the first
Who with the best meaning have
incurred the worst
King Lear Act 5, scene 3
It is now five and a half years since the Uluru Statement (link
here) was issued, and its call to action has progressively gained
increasing traction both within the popular imagination, and from governments.
The previous LNP Government undertook a convoluted time-consuming process (the
Indigenous Voice Co-design Process) led by Professors Tom Calma and Marcia
Langton, involving appointed members including government officials, to
recommend and design the broad shape of the proposed Voice, albeit without
committing to constitutional enshrinement. Their report (link
here) was finalised in July 2021. There was no further action until after
the May 2022 election. The incoming Labor Government committed from day one to
take the Voice proposal to a constitutional referendum within its first term
but has made no commitment in relation to the timing of legislation should the
referendum succeed.
Public debate on the proposal for a constitutionally
enshrined Indigenous Voice is inexorably building following the Prime
Minister’s announcement that the Government intends to take it to a referendum
in either the second half of 2023 or the first half of 2024. The battle lines
between supporters and opponents are taking shape. They have been on full display
in recent weeks. For example, Noel Pearson in his recent First Boyer Lecture (link here)
laid out the proponents’ case in a measured and sophisticated argument designed
to persuade and reassure the wider community that the proposal represents in
effect the essential step to achieving the nation’s quest to come to terms with
its history and destiny. In response, former Prime Minister Tony Abbott authored
a long op-ed in last Weekend’s Australian making the case against this proposal
arguing for an alternative form of constitutional recognition (‘Pass of fail,
this referendum will surely leave us worse off’ Weekend Australian 5-6 November
2022) . I don’t propose to summarise or analyse in detail the respective arguments
here.
Instead, I want to step into the grandstand, and examine
the intensifying debate underway from an alternative vantage point. In doing
so, I am not purporting to comprehensively deal with all the arguments for and against
the proposal, but merely to contribute a further perspective to be put into the
mix. To do so, it is first necessary to recognise that as with any major
political and policy issues, the proposal is inherently complex and
multifaceted.
In particular, the proposal is simultaneously an attempt to
have our nation’s founding document, the Constitution, explicitly recognise in
a positive way the original inhabitants of this land; a proposal to
constitutionally entrench an institution designed to rebalance the structural
inequities between Indigenous and mainstream interests; a proposal to
strengthen the ongoing process of reconciliation between First Nations and the
broader Australian community; a proposal to grant greater prominence to the
place of Indigenous cultures within the Australian nation; a proposal to ensure
Indigenous interests have a forum to formally contribute to policy initiatives
that potentially affect them; and ideally a proposal that will lead to better
policy outcomes across the Indigenous policy domain and over time to thus
‘close the gap’ in economic and social outcomes. These different and in some
cases overlapping facets to the Voice proposal span the spectrum from symbolic
to substantive, but it is too simplistic to encompass these facets, and those I
have perhaps not identified, within such a binary conceptualisation.
Some of these objectives may be achieved merely through the
successful passage of the referendum, and thus the concomitant amendment of the
Constitution. Others require the implementation through legislation of an institutional
entity with the resources, organisational resilience, and perhaps most
importantly, the sustained capability to effectively identify and advocate persuasively
on issues of potential concern to Indigenous interests. Implicitly embedded
within the requirement for ‘sustained capability’ is the necessity of ensuring on
an ongoing basis high quality leadership and organisational stability within
the Voice. These are not challenges unique to Indigenous institutions and
organisations, but they are nevertheless crucial to the long term success of
the proposed Voice.
It needs to be emphasised that the Voice is not envisaged
to be a mirror of the Parliament. It is not a third chamber. It is more akin to
an extra-parliamentary committee with the capacity to provide timely and high
quality advice on the implications of proposed legislation and policies for
First Nations citizens. It is about ensuring lawmakers and policymakers understand
the implications of their proposed decisions from the perspective of First
Nations citizens and peoples. This in turn suggests that while the Voice should
be broadly representative of First Nations (an issue that received detailed
attention in the Calma/Langton report), it should also be designed to ensure it
has the expertise necessary to fulfil its policy advocacy function
successfully.
The Government has appointed a Referendum Working Group to
advise on the Voice and a Referendum Engagement Group to provide an information
conduit to the wider Indigenous community (link
here). It has also appointed a Constitutional Expert Group to provide
advice on legal issues associated with the referendum proposal (link
here).
In this post, I explore the repercussions and implications
that flow from two contradictions embedded in the current proposal for a
constitutionally enshrined Indigenous Voice.
The first contradiction is
primarily related the implementation path chosen by governments to date. There
is a stark contradiction between the argument that a Voice is essential to recognising
the centrality of First Nations in having a role in shaping and influencing policy
affecting them, and the reality that no such Voice mechanism has yet been established
by the current Labor Government. The former Government established, and then sidelined
and abolished, the Prime Minister’s Indigenous Advisory Council — at the very time it had commissioned a
codesign process for the Voice — when its advice did not accord with the then
Government’s political agenda (link
here and link
here). The extraordinary insincerity of the former Government in
commissioning a high profile exercise to design a legislated Voice having sidelined
and abolished without announcement its own appointed ‘Voice’ is both remarkable,
and almost never remarked upon.
In a similar but less egregious vein, the current Labor
Government continues to effectively pursue a policy of ‘look here, not there’, planning
for a legislated Voice to be established following a constitutional referendum,
but foregoing any action now to establish an equivalent mechanism. It is
now almost four years since the former Government’s Indigenous Advisory Council
was sidelined in early 2019, and there is little likelihood that a
constitutionally enshrined Voice will be legislated before 2025: a six year
interregnum. Reinforcing this contradiction is the limited transparency on how the
Government is currently engaging with Indigenous interests on ongoing policy
matters beyond the proposal for a referendum and the Joint Council established
under the National Agreement on Closing the Gap. If the Voice is of substantive
importance, how can the nation afford to stand by for six years while we design
and construct the ‘perfect’ version?
This contradiction will come into crystal clear focus in
the event that the proposed constitutional referendum fails. In such an
eventuality, what will the Government do? In a rational world, logic would
suggest it should proceed to seek to legislate a Voice without constitutional
enshrinement (the former Government’s preferred approach), or alternatively
establish such an entity by administrative fiat in the same way that the
previous Government established its Prime Minister’s Advisory Council. However,
the world is not rational, and the political viability of either of these
options would be severely impaired by a negative referendum result. In such
circumstances, conservative opponents are likely to conflate the referendum
question and the Voice, and would argue that any legislation goes against the
will of the people. Administrative action to establish a Voice post referendum
would face fewer obstacles, but would be contentious and have no guaranteed
tenure beyond the next election, particularly as the timing of the referendum
is likely to abut the next election. In the event that the referendum fails, the
likelihood of any such structure eventuating into the medium term future
approaches zero. The potential downside costs in terms flawed future policies
are clearly considerable.
The first contradiction can thus be stated as follows: How is it that the governments have been prepared
to allocate the considerable financial resources, and considerable intangible
political resources, to moving towards a legislated and constitutionally
entrenched Indigenous Voice designed to give Indigenous Australians a greater
say over policies that affect them, while avoiding the establishment of an interim
Voice.
The second and more significant contradiction
relates to the potential for inappropriate influence by governments over the
structure, operations, and ultimately independence of the proposed Voice.
Arguably this contradiction was embedded within the original proposal for a
Voice to Parliament, but the risks involved are substantially greater given that
it is now proposed that the Voice may provide advice to both the Parliament and
additionally to the Executive arm of Government. The reason is that the
operations of the Executive arm of government are largely shrouded in secrecy
and opacity, subject to backroom deals and tradeoffs involving multiple
interests, and in many respects are best characterised as being shaped more by
processes of state capture than electoral considerations. Whichever characterisation
one prefers, the relative power of Indigenous interests in these processes are
much weaker than the interests that continue to shape the extant institutional
architecture of Australian society.
Transparency is the best weapon of weak interests. Pressure,
intimidation, coercion, and co-option are the most significant threats to weak
interests. The independence of the Voice can only be guaranteed by complete
transparency; yet engagement with the Executive arm of governments will only be
granted on the condition of secrecy (e.g. see dot point 7, p.148 in the
Calma/Langton Final Report). To contextualise the potential risks to the
independence of the proposed Voice, it is worth imagining the political uproar,
consternation and reaction were a government to propose legislation that
re-established the National Farmers Federation or the Minerals Council as a
statutory entity, with its governance and representational structures
controlled by processes laid down in legislation. In short, the wider the remit
of the Voice, the deeper and more extensive are the associated risks.
This expansion of the proposed remit of the Voice has attracted
virtually no public discussion since the Voice proposal was first articulated.
It is worth setting out briefly the genesis of this change.
The original proposal appears to have been for a Voice that
solely advised the Parliament. See the discussion in this note (link
here) from the Parliamentary Library in 2017. The notion of the Voice
providing advice to the Executive arm of Government as well as to Parliament
appears to have been in accordance with views promulgated by the then Minister
in the lead up to the commissioning of the Calma / Langton process. Tim Rowse’s
insightful analysis from February 2021: ‘Is the Voice already being muted?’ (link here),
provides a useful chronological account of the development of the idea of the
Voice providing advice to Government. See also my February 2021 post on this
issue in the context of the Calma / Langton interim report (link
here). That post also listed five arguments in favour of limiting the
Voice’s remit to advice to Parliament.
The final report of the Calma / Langton codesign process
made a robust case for the Voice to have the wider remit, basing the rationale
on the ‘critical need’ for the Voice to provide advice early in the policy and
law making process. The report discusses the issue in detail at pages 150 to
153. While it notes that some submissions argued for greater focus on advice to
Parliament, these views are dismissed, essentially by arguing that advice to
Parliament would be a ‘core function’. The report avoids or understates the
implications of non-transparent engagement between the Voice and the Executive
arm of Government, and while it sets out extensive requirements for
transparency around the Voice’s engagement with the Parliament (section 2.9) it
fails to provide any similar analysis for engagement with the Executive.
The most serious flaw in the Report’s analysis is the
evasion of any discussion of the respective roles of the Executive and the
Parliament. The unquestionable reality is that the Executive arm dominates the
Parliament, a relationship that can be traced to the short-sightedness of the
Constitution’s founders (link
here). The pragmatic and hard headed assessment that the legislative design
of the Voice must deal with is whether to seek to participate, in secret, and
at risk of co-option, in the day by day struggles for influence within the
executive arm where stronger interests with extraordinary financial backing
play hardball, or to rely on the transparency and public narrative
opportunities of using the Parliament to make the case for the fairer treatment
of First Nations interests.
Given this analysis, it is perhaps not surprising that a
change of Government has apparently not led to a new approach to the proposed
role of the Voice.
On 30 July 2022, Prime Minister Albanese recommended (link here) draft
text to be incorporated into the Constitution (emphasis added):
Our
starting point is a recommendation to add three sentences to the Constitution,
in recognition of Aboriginal and Torres Strait Islanders as the First Peoples
of Australia:
1.
There
shall be a body, to be called the Aboriginal and Torres Strait Islander Voice.
2.
The
Aboriginal and Torres Strait Islander Voice may make representations to Parliament and the Executive Government
on matters relating to Aboriginal and Torres Strait Islander Peoples.
3.
The
Parliament shall, subject to this Constitution, have power to make laws with
respect to the composition, functions, powers and procedures of the Aboriginal
and Torres Strait Islander Voice.
The current suggestion endorsed by the new Government’s Referendum
Working Party is that the proposed Voice should have a role in advising
Government as well as the Parliament.
In the communique released by Minister Burney after its
first meeting (link
here), the Working Group stated, inter alia (emphasis added):
The
Working Group discussed common principles for the Voice drawn from the work
already done to define the Voice. Those principles identify the Voice as a body
that:
• provides independent advice to the
Parliament and Government.
A wider remit for the Voice is a recipe for disaster. The
core reasons are two-fold: a wider remit will (i) fundamentally undermine the
independence of the Voice; and (ii) set up a situation where the Voice inexorably
becomes the paramount mediator and promulgator of Indigenous views to
Government. Chris Kenny ( a member of the Senior Advisory Group for the
Indigenous Voice Codesign Process) recently argued that the Voice should
subsume existing Indigenous advocacy organisations and that the architecture of
Indigenous organisations can be rationalised and streamlined (‘Recognition and
a fair go to bring us together’, Weekend Australian 5-6 November 2022). In turn,
a wider remit increases the incentives on Governments to seek to cajole and co-opt
the membership of the Voice, including by controlling the resources made
available to the proposed Voice, and ultimately through threatening to amend
its structure and membership to ensure it receives the advice it expects. This risk
is substantially less if the remit is limited to advising Parliament, leaving
advocacy and engagement with the Executive arm of government to other First
Nations peak bodies and organisations.
Thus, we can summarise the second and most serious contradiction
within the Voice proposal, whether its remit is broader or narrower, as
follows: that the mechanism that
constitutes the Voice will fundamentally be a creature of the Executive arm of
Government and indirectly the Parliament. Both the Executive and the
Parliament overwhelmingly reflect mainstream interests and political views. The
challenge is to design a Voice that ensures independent Indigenous views
are taken into account in the political and policy processes that constitute
Australian democracy.
In my view, the two contradictions embedded within the
current approaches to the Voice proposal, if left unattended, represent
existential risks to the viability and effectiveness of the proposed Voice and
to the longer term capacity of Indigenous interests to effectively influence legislation
and other major policy initiatives directed at, or significantly impacting,
First Nations in Australia.
How then might these risks be mitigated? I see three
inter-related and complementary initiatives that would go a considerable way to
reducing these risks.
The
first risk mitigation initiative would be to establish an interim
policy advisory body with a remit to advise the Parliament through the
publication (to the world at large) of advice on Indigenous policy issues across
the board including potentially issues arising in the course of legislating the
Voice. Such a body would be explicitly interim, and thus its own design would
not purport to foreshadow the design or operations of an eventual Voice.
Inevitably however, its operations would provide valuable insights into the
practical issues likely to arise.
One of the most difficult issues in pursuing such a
strategy would be the selection of members of the interim body. Recent
Governments have displayed a penchant for making unilateral appointments, often
without a public selection process. Such a process in relation to an interim
Voice, where the legitimacy of its membership to represent diverse Indigenous
interests is likely to be questioned, is in my view problematic. The current
Government has made unilateral appointments to a number of advisory groups (to
the Executive) designed to assist in managing the process towards a
referendum (link
here and link
here). The Government has gone out of its way to appoint members from
across the political spectrum, including the former Minister Ken Wyatt. Similarly,
given the likely political heat over the coming two years, the implementation
of any interim general policy advisory body would need to meticulously seek a
cross partisan and diverse membership.
A
second risk mitigation initiative to address the risks of
inappropriate influence by mainstream interests over the constitution and
membership of the Voice would be aimed at insulating the Voice from the
partisan politicisation that infuses virtually all public policy issues in
Australian democracy. The current default in establishing representative
structures are either appointments or elections. Unfettered and non-transparent
appointments by Governments or the Parliament are unlikely to meet the
expectations of Indigenous interests. Elections are a better option, but have
serious downsides. The adoption of mandatory elections would be problematic,
and would exacerbate internal conflict along mainstream partisan lines. An
elected membership of the Voice will be constituted by Indigenous politicians,
rather than Indigenous policy experts. There is a risk that mainstream
political parties would colonise electoral processes with funding and technical
support to the detriment of more local and regional concerns. It is also
indisputable that trust in electoral processes is under challenge both here in
Australia, and more overtly in the US, and Europe. Increasingly, trust in
elected officials worldwide is dropping (link
here).
In other words, while appointments or elections are framed
as mechanisms to achieve representativeness, they are demonstrably inadequate
in guaranteeing independence from external influence. This leads me to
suggest consideration of a third approach.
My admittedly innovative suggestion for the constitutionally
enshrined Voice established after a successful referendum, would be to adopt a
process based on sortition or random selection. The Australian Electoral
Commission would oversee the selection process. It might first call for public
nominations, then use an independent panel appointed by a cross party selection
panel, to cull the number of nominees to say 200 based on merit and perhaps
with some adjustment to ensure adequate numbers of women and a roughly pro-rata
split of urban, regional and remote nominees, and then use a process of
sortition to randomly select say 12 to 15 members for appointment to staggered two
year terms. Such a selection process would be cheaper than elections, remove
strategic behaviour by Voice members seeking re-election, minimise the
incentive for politically aligned governments or parliaments to seek to co-opt
Voice members, and arguably lead to more effective representation within the
Voice of the span and diversity of Indigenous interests across the nation.
The third
risk mitigation initiative would be to revisit the suggestion that
the proposed Voice have a role in advising the Executive arm of Government as
well as the Parliament. My counter-intuitive assessment is that a narrower
remit, where the functions of the Voice are limited to advising the Parliament,
would lead to a more influential and effective Voice. The Voice would
automatically focus on the major structural and institutional issues which will
shape the opportunities available to First Nations citizens into the future,
without being overwhelmed (either intentionally or not) by the miasma of
transactional influence peddling and bureaucratic secrecy that pervades the
operations of the Executive arm of Government. It would ensure that the
entirety of its operations are undertaken transparently and its advice provided
largely in the open, thus reducing the incentive for Governments to seek to
manipulate or co-opt its membership, and it would pre-empt the otherwise inevitable
arguments that existing Indigenous advocacy organisations and peaks should be
sidelined and/or abolished.
Conclusion
I have identified two complementary contradictions that sit
at the core of the current processes aimed at implementing a constitutionally
enshrined Indigenous Voice. If the proposal for a Voice is worthwhile and
important, why have Governments not implemented an interim version given the
extended time frames involved in establishing the Voice? And if it is designed
to represent First Nations interests to mainstream policymakers, how is it that
mainstream interests retain powers to shape and influence its constitution and
membership? These contradictions are deeply embedded in, and are a reflection
of, the fact that the nation has yet to satisfactorily resolve its relationship
with First Nations, and are thus part of the intractable reality that the
nation must confront. In response, I have outlined three strategies designed to
mitigate (but not necessarily entirely overcome) the risks that emanate from
these extant contradictions.
The success of the proposed referendum is far from certain.
And virtually all the public debate implicitly assumes that a successful
referendum will resolve the nation’s fraught relationship with First Nations.
In fact, the planned referendum is just the beginning of a much longer journey
that the nation must travel. It behoves those of us with an interest in
Indigenous public policy, and those of us committed to greater justice for
First Nations, whether we are First Nations members or not, to look beyond the
rhetoric on both sides of the current debates, and think through the difficult
choices that await the nation whether the referendum succeeds or fails. Not to
do so will inevitably exacerbate the challenges the nation faces in building an
inclusive society that treats all citizens justly and equally. Such an outcome would
be a tragedy for First Nations citizens and for the nation as a whole.
