The 2017 Uluru Statement recommended a Voice to Parliament.
This recommendation was endorsed by the Referendum Council established by
Parliament in 2015, and subsequently further considered by the Parliament’s
Joint Select Committee on Constitutional Recognition relating to Aboriginal and
Torres Strait Islander Peoples (JSC). In November 2018, the JSC recommended a
codesign process be initiated to design a Voice. Almost a year later on 30
October 2019, the Government established a ‘codesign process’ to develop an
Indigenous Voice (link
here). In his remarks to the first meeting of the Senior Advisory Group he
appointed, the Minister for Indigenous Australians Ken Wyatt made clear that
constitutional recognition was, in his words, ‘off the table’, and that the
proposed Voice would be ‘to Government’ (link
here).
On 9 January 2021, the Minister released the report (dated
October 2020) of its three advisory groups, the senior group chaired by Marcia
Langton and Tom Calma (link
here). The Interim Report is available on the voice website (link
here). At over 240 pages, there is a lot of detail to wade through. Yet the
overarching proposal is straightforward, and the report, particularly the
section on the National Voice, is clear and well written. The report proposes a
series of options for the National Voice that will be narrowed down, via a
proposed four-month national consultation process, to a final report, which
will then be submitted to Government for consideration. The architecture of the
Voice, including the options to be decided, is helpfully laid out in the
diagrams on pages 16 and 17 of the report. It is not my intention to seek to
summarise the interim Reports key proposals; instead, I will assume readers
have at least read the Executive Summary and the diagrams on pp 16-17.
In the two weeks since its release, there have been
numerous news and opinion articles from a range of perspectives. Again, these
have invariably been thoughtful and useful contributions, largely concentrating
on the discrepancies between the proposal in the Uluru Statement and the
Interim Report. Journalists Sean Kelly (link
here) and Deborah Snow (link
here) both wrote insightful pieces in the SMH providing an overview of the
issues, and exploring the Government’s broad approach to handling the Voice.
Mark Liebler (link
here), Megan Davis (link
here and here),
Gabrielle Appleby (link
here), James Blackwell (link
here), and Dani Larkin (link
here) all argued in favour of constitutional entrenchment of the Voice,
albeit with different nuances regarding timing, and the most appropriate
sequencing of the various steps. Paige Taylor in The Australian (link
here) reported on a formal submission from 43 lawyers supporting the Uluru
Statement’s proposal for constitutional entrenchment. Taylor (link
here) also reported Liberal MP and ‘voice supporter’ Julian Leeser’s
statement (link
here) urging fellow voice supporters to shift their efforts away from talk
about the Constitution, noting that ‘the key issue is not words in the
Constitution but whether it will genuinely give voice to Indigenous people
across Australia on the issues that affect them most’. Marcia Langton, in an
interview on Late Night Live (link here), argued
that ‘constitutional enshrinement’ was desirable, but was outside the terms of
or reference for the exercise she was engaged in. This selection of views is
only a subset of the analysis in the public domain, and there is clearly much
more to come.
In this post, I focus on a two core underlying issues that
will shape both the debate and the substantive impact of whatever emerges into
the medium and longer term.
The two issues that I want to consider are:
1. The
‘engine design’ of the Voice.
2. The
focus of the Voice: to parliament or to government?
While constitutional recognition of First Nations and
constitutional reform is extremely important and overdue, the merits of
constitutional entrenchment of a Voice is best characterised as ‘necessary but
not sufficient’ as a mechanism for addressing Indigenous exclusion and dispossession.
The sufficiency of any reform is a function, at least in part, of the answers
policymakers give to the design issues involved in the Voice. Along with my
co-author Neil Westbury, I have previously argued that constitutional
recognition of the Voice is a step forward, but is not sufficient on its own to
address Indigenous exclusion: see pages 65-77 in our Policy Paper Overcoming
Indigenous Exclusion (link
here).
The
‘engine design’ of the Voice
The proposed Voice is a vehicle for the advancement of
First Nations political and policy aspirations. When one buys a car, one of the
essential elements to consider is what is under the bonnet. Yet in the tens of thousands
of the words written about the Voice proposal, very little focusses on the
internal mechanics.
Very few Australians understand the complexity of
government and its processes. A Voice, to be effective, needs to have access to
timely and high quality policy analysis across the breadth of government
activities, at federal, state and local levels. The obverse of this coin is
that the members of a Voice will also need to understand what is happening in
the private sector, and have a technical capability to assess the likely impact
of both public sector policies and private sector activities on its Indigenous
constituency. To influence outcomes, and importantly, to set the policy agenda,
Indigenous interests and thus an effective Voice will need an ongoing policy
analysis capability that supports the Voice to monitor the workings of the
public policy machine across the breadth of government activities. Unfortunately,
the Interim Report appears to reject an approach that would see such a support
structure established (see pages 57 and 156).
In turn, such a capability will require resources, and
these will need to be both adequate and guaranteed outside the normal budget
process. Without such a guarantee, the Voice will be susceptible to budgetary pressure
and perhaps manipulation by governments. The Interim Report recognises this
issue (see pages 155—156), but gives it little profile. My suggestion is that
the legislation establishing the Voice formally appropriates ongoing core
funding necessary for the Voices operations, including the policy analysis
function outlined above (ie taking funding decisions out of the annual budget
cycle). Alternatively, the Government could establish a perpetual trust fund, —much
like the $2bn Aboriginal and Torres Strait Islander Land and Sea Account (link here) — whose
annual income would fund the operations of the Voice.
So one “make or break” issue for First Nations interests
(and indeed for the wider community if it wishes to establish a new relationship
with First Nations) is not so much whether Governments are prepared to
establish a Voice, but whether the Voice that is established has the horsepower
and torque under the bonnet to make a difference in rough policy terrain. Will
it be a FIAT 500 or a turbocharged FWD Utility?
The
focus of the Voice: to Parliament or to government?
The Uluru Statement proposed a Voice to Parliament. This proposal
was further considered by a Parliamentary Joint Select Committee (JSC) chaired
by MPs Julian Leeser and Patrick Dodson. The JSC’s Final Report in November
2018 (link
here) noted that stakeholders held a range of views regarding the remit of
a potential Voice (see paras 2.93—2.106), but failed to draw any definitive
conclusion on the matter.
As noted above, when establishing the Government’s Voice
Codesign process, Minister Wyatt described the Voice as ‘a voice to government’.
There was no mention of this issue in the Terms of Reference for the three
codesign groups, apart from clause 7 of the Terms of Reference for the National
Codesign Group, which states: ‘Proposed options must not create barriers to the
operation of existing Commonwealth Government Parliamentary processes’. The Interim
Report takes the view, that the Voice should advise both the Parliament and the
Australian Government (see pages 50—54), or to use alternative terminology,
advise both the legislative and the executive arms of government. Their rationale
boils down to an argument that engagement with the Executive is necessary to
ensure early engagement in the policy process. Yet there is no reason why the
Executive could not engage at an early point with a Voice to Parliament through
mechanisms such as the tabling of Green or White Papers on key policy issues ,
that in turn foreshadow legislation. Furthermore, at its core the Executive owes
its political power to its own electoral constituency, whereas the Parliament
is much more representative. Any mechanism that is designed to engage with the
Executive branch runs the risk of disenfranchising elected parliamentarians, particularly
independents and minor parties. This in turn could become a reason not
to provide for such a mechanism in the Constitution.
There are in my view serious arguments against providing a
remit for the Voice that extends beyond advice to Parliament. But first, some context regarding the
separation of powers is important.
While the apex of the executive arm of government is drawn
from the Parliament, and is theoretically accountable to Parliament (and
through Parliament to the people), the operation of the party system has meant
that in practice, the Executive arm has come to dominate and largely control
the Parliament. This has weakened the separation of powers, and arguably
weakened standards of governance and accountability generally. The rise of
minor parties and independents now threatens the unquestioned dominance of the
larger parties and their hold over Parliament and its processes. There is no
guarantee into the indefinite future that the Executive branch will continue to
dominate the Parliament. Yet this is the implicit assumption that underlies
Minister Wyatt’s approach to the Voice.
There are at least five arguments in favour of limiting the
remit of any Voice to providing advice to the Parliament.
First, the
Uluru proposal’s focus on Parliament represented an important and welcome shift
insofar as it focussed on the Parliament, the formal repository of sovereignty
and lawmaking in the nation. It was simultaneously highly symbolic and
practical. If implemented, it provides tangible demonstration that the nation
accepts the voices of First Nations as legitimate and worth hearing, without
undermining the capacity of the Parliament to operate as it has since
Federation. Or as George Williams described it in a recent op ed, it is a
further step in ‘nation building’ (link
here). The alternative approach, where the Voice focusses on ‘government’
(either the Executive arm and the Parliament; or potentially just the Executive
arm), undermines that symbolic and practical demonstration. The opacity of
governments on which of these two alternatives they intend when they use the
term ‘government’ must surely be deliberate.
Second, as
the interim Report itself documents (see pages 119—128), we have had fifty
years of national Indigenous representative bodies focussed primarily on
advising the Executive arm of Government. Governments have in turn constrained
their operations, limited their resources, cherry picked their advice, and
abolished them when managerial oversight became too costly. A Voice that is the
creature of the Executive, tasked with advising the Executive, will not long
survive. Even if the Voice is constitutionally entrenched, its composition,
design, shape and ultimately its capability to influence policy outcomes will
still be subject to change via legislative amendment. This suggests strongly
that Indigenous interests would be unwise to rely solely on the Voice as the
vehicle for advocating their aspirations to governments.
Third, the
implicit assumption in proposing a Voice to the Executive branch is that the
decisions within the Executive are open to rational persuasion. This is far-fetched.
It ignores the ubiquity of political agendas in shaping and determining government
decision-making, the fact that lobbying, influence peddling and rent seeking is
rampant (link
here), and that political donations buy policy outcomes even in the face of
evidence of community harm (I will say just three words: gambling, smoking,
alcohol). More insidiously, the reality is that the pressure on the members of any
Voice to the Executive will be to go soft on some issues in the interests of
being heard on others. Governments are expert in making the gift of mere access
appear to be substantive influence, and ensuring that those with alternative
views do not get through the door. While these same pressures will apply in
relation to a Voice to Parliament, the formality of open and transparent advice
and the focus on particular legislative proposals will limit the potential for
co-option of both individual members and the Voice, and reduce the likelihood
of governments encouraging ‘vote trading’ and ‘logrolling’ by the Voice.
Fourth, the
case for the establishment of a Voice directed to the Executive ignores broader
developments in the Indigenous policy terrain. In particular, the National
Partnership on Closing the Gap (link
here) includes commitments from all Australian governments to four priority
reforms, most importantly in this context, to shared decision making. See
clauses 25—41. In the words of clause 17,
the
outcomes of this agreement are (a) shared decision-making: Aboriginal and
Torres Strait Islander people are empowered to share decision making authority
with government to accelerate policy and place based progress on Closing the
Gap through formal partnership arrangements.
The risk is that governments will use a Voice to the
Executive as a mechanism to undermine or confuse Indigenous perspectives when
faced with difficult negotiations with community based organisations in
accordance with the National Partnership processes. There is a very real risk
that an advisory Voice to the Executive arm of government (see page 154
of the Interim Report) will undermine the progress achieved by Indigenous
interests through the National Partnership in moving towards shared decision-making.
Fifth
and finally, a Voice to Parliament ought not to be seen as
the sole mechanism for First Nations advocacy. The public policy terrain is too
complex for any single organisation or body to master or monopolise. Instead,
the Voice to Parliament ought to be seen by First Nations interests as just one
of multiple pressure points for public policy advocacy and influence. A
constitutionally entrenched Voice to Parliament would pick and choose its
issues, take the high ground, and make each foray into policy advocacy count.
It will need to be supplemented by a phalanx of Indigenous organisations, peak
bodies, and citizens. The essential and important task of advocating,
pressuring, and influencing the Executive arm of Government ought to be undertaken
by First Nations interests that are at arm’s length from Government, that are not
subject to intense informal pressures that apply to budget dependent
organisations, and that are organically organised independent of governments. This
is a task that has been begun by the Coalition of Peaks, but is as yet far from
complete. A decision to establish a Voice that advises the Executive arm of
Government would potentially undo the progress made to date, and delay the day
when First Nations can stand up and sustain powerful and independent Indigenous
controlled advocacy bodies akin to the Business Council or the Minerals Council
of Australia.
In sum, counter-intuitively, the proposed Voice is likely
to be most effective in representing First Nations wider interests if its remit
is limited to advising the Parliament. First Nations already have a substantial
organisational infrastructure that can be directed to influencing the Executive
arm of Government, and they should aim to further build the capacity and
capability of that organisational infrastructure. A Voice to Parliament fills
an existing gap, and provides both a highly symbolic and practical means of
advancing First Nations interests and aspirations. Extending the remit of a
Voice to the Executive risks diverting attention from the important role of Parliament
in oversighting Indigenous policy outcomes and holding the Executive arm of
government to account. It also risks undermining the legitimacy of the
pre-existing Indigenous organisations and peaks, and by implicitly replacing an
organic phalanx of interests with a single point of focus, raises the risks of
co-option of Indigenous aspirations by governments.
Conclusion
The release of the Interim Report, and the public reaction
so far, confirms that the proposal for an Indigenous Voice appears to have a
critical mass of support in the Australian community. While the Interim Report
has been assiduous in avoiding a recommendation on constitutional entrenchment,
that has been the key inflexion issue discussed in most media commentary since
the release of the report. My own assessment is that the current Government is
pursuing a strategy of legislating a Voice, probably after the next election,
and will not pursue constitutional entrenchment of the Voice in the foreseeable
future.
This post has focussed on a number of “make or break”
issues which will arise if and when a Voice is legislated. The issues
identified are “make or break”, because they will go a long way to determining
the capability of any Voice to build and sustain legitimacy and credibility,
and importantly to influence policy, which in turn will determine whether the
power imbalances that are embedded structurally within our politics and policy
processes will be able to be gradually removed.
In other words, the Voice for all its symbolic importance is
not the destination. The Voice is the vehicle that First Nations have chosen to
reach the destination to which they aspire. That vehicle will have to traverse
a long hard road if it is to reach its potential. If the Voice is to be part of
the solution to the ongoing exclusion and disadvantage of Indigenous citizens
and communities, then we should support developing a Voice that has the
capability and resources to influence policy; and that is at arm’s length from
the Executive branch of government. The best way to achieve that is to limit
its remit to advising the Parliament. Simultaneously, First Nations should
redouble their efforts to build an independent self-funded organic organisational
and institutional capacity beyond the purview of governments to advocate, lobby
and push the Executive branch of government to develop policies that meet their
aspirations. The single most important lesson of the last fifty years in Indigenous
politics and policy is that what governments grant they can, and will, take
away.
Postscript: As I
finalised this post, I came across Tim Rowse’s insightful and astute analysis
in Inside Story ‘Is the Voice already being muted?’, which has multiple resonances
with the points I have made here, while also reflecting some differences in approach
and emphasis. I recommend interested readers read Tim’s analysis (link here).
No comments:
Post a Comment