Mitigating embedded contradictions within the proposal for a constitutionally enshrined Indigenous Voice.

                                                                                         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.