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.

 

 

 

 

 

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.

Indigenous turnout in the NT election: wider implications

 

Counting is still underway in the NT following last weekend’s election. It is clear that Labor retained Government albeit with a diminished majority, but a number of seats remain in doubt with extremely close two party counts yet to be finalised.

 

At least five of the 25 seats in the Legislative Assembly appear to have been won by Indigenous candidates: Lawrence Costa (ALP) in Arafura; Selena Uibo (ALP) in Arnhem, Chancey Paech (ALP) in Gwoja, Ngaree Ah Kit (ALP) in Karama, and Yingiya Mark Guyula (Independent) in Mulka. This compares with six Indigenous members in the Assembly elected in 2016.

 

One of the concerning issues relating to the NT election is the poor turnout of Aboriginal voters in the bush.

 

The following discussion is not framed as a conclusive analysis, but rather as a provisional assessment. Its intention is to stimulate a more rigorous and demographically sophisticated assessment either by the NT Electoral Commission itself, by the Australian Electoral Commission (AEC), by independent researchers who specialise in these issues, and perhaps most importantly, buy the respective parliaments in Canberra and Darwin.

 

The NT Electoral Commission website includes a table summarising first preference votes by division (electorates) which lists total enrolment and voting figures (link here). It identifies the total enrolment across all 25 divisions as 135,506, and total votes lodged as 100, 304; a turnout of 74 percent across the NT.

 

The seven bush electorates (Arafura, Arnhem, Barkly, Daly, Gwoja, Mulka, Namatjira) with high concentrations of Indigenous citizens of voting age had a total enrolment of 39, 091, with only 22, 624 votes cast; a turnout of 58 percent. A similar calculation for the 2016 election revealed a turnout in the bush electorates of 60 percent (noting that there have been changes to the names, and perhaps boundaries, of the relevant divisions in the intervening period).

 

These figures raise uncomfortable questions regarding the efficacy of our democratic institutions in representing the populace at large, and particularly the remote bush population in the NT.

 

One threshold issue relates to the issue of potential under-enrolment of Indigenous citizens. The enrolment figures cited above include Indigenous and non-Indigenous citizens. If we were to assume that 20 percent of enrolments in the bush electorate are non-Indigenous, this would suggest an Indigenous enrolment of around 31,000. Based on an analysis of the 2016 census by CAEPR researchers Francis Markham and Nick Biddle, (link here), there would appear to be around 53,000 remote Indigenous residents in the NT (see Table 6). If we were to assume that around 20 percent were below voting age (see Table 3) then we have a potential Indigenous enrolment of 43,000 across the NT bush electorates. In other words, these calculations suggest an unenrolled population of around 12,000 remote Indigenous citizens in the NT. Clearly these figures are rough and ready, but they do suggest that there is both an enrolment gap and a voting gap in the NT.

 

So what are the potential causes of these gaps?

 

I don’t propose to delve too deeply, but instead, aim to identify and unravel some of the potential causes, and explore the implications. Finally, I want to suggest a potential path for taking the issue forward.

 

In relation to Indigenous electoral education, the NT Electoral Commission appears to have a modest program of optional activities focussed on schools and community groups (link here).  The Australian Electoral Commission (AEC) has a program, the Indigenous Electoral Participation Program (link here) which works through community partnerships.  The AEC website states that the program was established in 2010 ‘to close the gap in Indigenous disadvantage in electoral participation’. In a document available on the AEC website titled IEPP Program Overviews 2018-2021 (link here), the AEC repeatedly references its ‘limited resources’ and limited capability. The document notes (p.4):

 

Working through community organisations, Commonwealth, State and Local Government entities, and other service providers to promote and distribute information on recruitment opportunities and electoral education, the AEC will be able to reach deep into communities where current resources cannot extend. [emphasis added]

To deliver this strategy the AEC will require a mix of capabilities. Direct engagement with Indigenous communities to understand and educate people about the electoral process will still be a requisite capability however this activity will be limited under the new model. [emphasis in the original].

 

Clearly the limited quantum of resources are an issue. ANU political scientist Will Sanders, writing in Marian Sawer’s edited collection Elections Full Free and Fair (Federation Press) in 2001, noted that by 1974, around one in two Aboriginal citizens in the NT were enrolled, and outlined the short history of the Aboriginal and Islander Electoral Information Service (AIEIS) which emerged following an infamous election in the Kimberley in 1977. Upon the election of the Howard Government in 1996, the AIEIS was abolished without consultation with the AEC and AEC funding for Indigenous education cut. Sanders noted (p. 166):

 

The program, which had been gradually developing and building up since 1979 and had had four positive review by 1995, was simply terminated.

 

The AEC has struggled ever since to revive an effective Indigenous enrolment and election education capability.

 

In relation to the potential reasons for extremely low enrolment levels and voter turnout, a number of hypotheses spring to mind.

 

People in remote communities have tuned out.

 

In an episode of The Drum on ABC TV in the week before the NT election (link here), NLC CEO (and former Deputy Chief Minister of the NT), Marion Scrymgour mentioned the likelihood of very low turnouts in the bush and suggested that people in the bush were effectively voting with their feet. In particular, she mentioned overcrowded housing, poor access to services, and high food prices as ongoing issues that successive governments talked about but failed to fix.

 

Social media

 

There is a considerable literature emerging related to the use of social media in remote Indigenous communities. However, I have been unable to find research which examines the potential impact of intense engagement with social media in many remote locations on levels of interest and engagement with broader political and policy issues within national and state/territory jurisdictions. My hypothesis is that intense social media use effectively crowds out use of alternative and mainstream media, and leads to significant reductions in interest in political developments in the metropolitan capital, and perhaps much greater focus on personality politics (admittedly, something difficult to ignore in the NT given the small size of all electorates). In the 2018 report by Bronwen Carlson and Ryan Frazer Social Media Mob: Being Indigenous Online (link here), there is a description (p.8) of intense social media use in a remote South Australian community which describes ways in which social media tools have been re-oriented to culturally relevant tasks and concerns.

 

Cultural concerns and local politics dominate

 

A third hypothesis (that may be reinforced by the social media factor above) is that the strength of local cultural and political concerns within small scale and closely networked societies with limited and comparatively weaker external connections to larger centres may operate to reduce the relevance of and interest in voting, electoral participation, and political engagement more generally.

 

Conclusions

 

The low levels of electoral participation in the recent NT election signal a deep and deepening disengagement between mainstream Australia and remote Indigenous communities.

 

This disengagement is paralleled by the low levels of Indigenous engagement in education; by the high levels of unemployment and under-employment; by the fraught and punitive operations of the income support program across remote Australia; and by the extraordinarily high levels of incarceration of remote community members (particularly young adult males). This deep disengagement signals extremely low levels of alignment between mainstream and remote community norms, and threatens social cohesion both now and into the future.

 

Each of these areas of disengagement has serious repercussions for Indigenous citizens and their families, but also for mainstream Australia’s ability to operate as an inclusive society.

 

The strengthening disengagement of remote communities from the mainstream electoral system is of particular concern. It threatens the process of reconciliation within the nation. It both undermines the legitimacy of our systems of governance to elect governments that represent and speak for all citizens, and it reinforces the voicelessness of a significant segment of the remote population in the decision-making processes that ultimately affect their livelihoods and opportunities.

 

There is clearly a case for a much more rigorous examination of the issue of electoral participation nationally by remote Indigenous citizens. The obvious option would be a comprehensive Parliamentary Inquiry. While it may seem like an issue for the NT Legislative Assembly, I would suggest that these issues are likely to exist in jurisdictions beyond the NT, and will be present (albeit in diluted form) in Federal elections. They may also be an issue in Local Government elections. Accordingly, there would appear to be a case for the Australian Parliament to initiate a comprehensive inquiry. Any such inquiry would be greatly assisted by commissioning a comprehensive program of independent research and analysis.

 

Finally, the Australian Government has established a process to examine options for an Indigenous Voice (link here). While we are not privy to the status of those discussions, one of the likely options the various advisory groups will consider will be elected models. In this context, it will be important to understand the underlying drivers of electoral disengagement in remote communities, as there will be a risk that disengagement with mainstream politics in those communities will spill over into the processes involved with any proposal for an elected Voice. Of course, whether an elected Voice should be comprised of elected members is a complex issue, and I am presently far from persuaded that it is the best approach. This is an issue for another day.

Time to ‘get real’ about progress in Indigenous affairs?

On 12 July 2019, The Australian ran two Indigenous related stories on its front page. The most prominent related to the proposal for an Indigenous Voice in the Constitution. The lesser story, which has entirely disappeared from view in the week since, derived from comments made to The Australian by the new Minister for Indigenous Australians, Ken Wyatt, and was headlined: ‘Wyatt’s challenge to ‘disconnected’ urban activists’, and the full story on page 6 was headed: ‘Get real, Wyatt tells urban indigenous’. This story (link here behind paywall) is the subject of this post.

The story is interesting for a range of reasons: it reflects the reality that there is a large and growing divergence between the economic and social status of remote and non-remote Indigenous citizens, with remote citizens being amongst the most economically and socially disadvantaged Australians, whereas non-remote Indigenous citizens, while clearly disadvantaged, are much better positioned. The reasons are complex. They include the demographic trends which involve an ongoing and significant increase in the population of non-remote Indigenous citizens (driven in large measure by increases in the numbers of citizens self-identifying as Indigenous citizens); the greater access to a wide array of mainstream services in non-remote Australia; and the less effective delivery of core services and programs in remote Australia.

The story is also interesting because it reports on the breach of an implicit and widely accepted taboo against undermining the ideological unity of fundamental Indigenous interests and aspirations (notwithstanding the widespread recognition that within the Indigenous community there are substantive linguistic, cultural and social differences). The fact that the new Minister made these comments in a highly public forum makes it even more intriguing. And of course, the fact that the Minister’s comments appear to have been met with universal silence from non-remote Indigenous commentators and leaders makes it triply intriguing (I should qualify this last assertion my admitting that as I am not on social media, I may have missed some reactions).

So why did the newly minted Cabinet Minister decide to open up a new front in the Indigenous policy space, one that he had not mentioned the day before in his major speech to the National Press Club? To seek an answer, we have to take a few steps back.

On 10 July 2019, Minister Wyatt fronted the National Press Club for his first major address since his appointment (link here). The speech was notable mainly for the hares which were set running on constitutional recognition and the proposals in the Uluru Statement for a Voice to Parliament.

The Minister began his speech with the following statements:

The concept of the voice in the Uluru Statement from the Heart is not just a singular voice, and what I perceive it is - it is a cry to all tiers of Government to stop and listen to the voices of Indigenous Australians at all levels.

The voice is multilayered and includes voices of individuals, families, communities and Indigenous organisations who want to be heard by those who make the decisions that impact on their lives of Indigenous Australians at all levels…

…All they want is for governments to hear their issues, stories and their matters associated with their land, their history. They're asking the three tiers of government to stop and take the time to listen to their voices.

The development of a local, regional and national voice will be achieved…

It is my intention to work with state and territory ministers to develop an approach underpinned with existing jurisdictional organisations and advisory structures that they have established to advise state and territory governments…

…I'll turn to the matters of Treaty and constitutional recognition later.

Much later in the speech, he returned to the issue of constitutional recognition, stating inter alia:

Constitutional recognition - as I mentioned earlier, I will develop and forward a consensus option for constitutional recognition to put to a referendum during the current parliamentary term. …

…I do not want to proceed if we are not going to be successful. I have commenced the process of engaging and seeking the counsel of Indigenous leaders on the best way forward.

We need to design the right model to progress to a point of which the majority of Australians, the majority of states and territories and Indigenous Australians support the model so that it is successful.

The Morrison Government is committed to recognising Indigenous Australians in the constitution and working to achieve this through a process of true co-design. Constitutional recognition is too important…

…I plan to establish a working group of Parliamentary colleagues of all political persuasions to assist me in considering the role of engaging on many levels to bring forward a community model.

The Shadow Minister for Aboriginal Affairs, Linda Burney, will be integral to that process.

The constitutional recognition work is unfinished. It will take time. It will need to be measured… [some less relevant text has been omitted from these quotes]. 

In retrospect, (and notwithstanding the rhetoric about co-design) it is clear that the Minister was drawing a distinction between the proposal for a Voice to Parliament and the proposal for constitutional recognition. However this nuance was not picked up by the media covering his speech (see for example this report from the ABC which reported that the Prime Minister had indicated a week earlier that he was prepared to work with Labor on implementing the Voice proposal).

The following day, Thursday 11 July, the Australian Financial Review ran a story that effectively obliterated the Minister’s distinction and which was prominently headlined ‘Indigenous referendum in three years’ (link not available). Other media commentators similarly, and understandably, missed the distinction (see for example Eddie Synot in The Conversation link here). While the Minister was making a clear distinction between the Voice and constitutional recognition, it is apparent that he was also intent on maintaining a high degree of ambiguity. Unfortunately, this latter aim backfired spectacularly.

On Friday 12 July, The Australian’s front page headline was “PM to veto ‘voice’ in the Constitution’ (link here; see also this link). The story underneath stated ‘that Minister Wyatt had declared in his speech that ‘the government would consider creating a voice to parliament through legislation and left the door open to enshrining it in the Constitution’. The story went on to state ‘senior government sources [ie the Prime Minister’s Office] said yesterday Mr Morrison would not support a constitutionally enshrined Indigenous advisory body’.

This was the very same day that the Minister made his comments regarding ‘disconnected’ urban Indigenous leaders.

It seems to me that there are at least three potential explanations for the Minister’s uncharacteristic and arguably unwise public bluntness directed at his own natural constituency. After all, one of the universal descriptions of him (a perspective that I share) is that he is a thoroughly decent bloke not prone to giving offence.

The first possible explanation is that the Minister is aware of particular Indigenous leaders who are abusing their positions of leadership and failing to represent their broader constituency. According to the article, he did claim to have spoken to some leaders ‘about their connections to the people they represented’. While such unrepresentative leaders may exist, one wonders whether taking this issue into the public domain without sustained backup such as including it in his speech, issuing a media statement, and outlining a strategy to improve governance capabilities, would have much influence on such recalcitrants.

The second possible explanation is that he was in fact sending a coded message to his Cabinet colleagues that he was prepared to be tough on the Indigenous community where necessary, and / or that there are very high levels of need in remote Australia which will need greater investment. Of course, as a former Minister (for Aged Care) in the Government, he will be highly conscious of the Government’s record to date in cutting expenditure outlays in the Indigenous policy sector. See for example the discussion on expenditure in the Parliamentary Library’s recent Briefing Book publication, and in particular the commentary on cessation of National Partnership Agreements (link here). I note in passing that this publication does not include mention of the significant cuts to the National Partnership on Remote Housing (previously discussed in this blog here and here as well as here). The Minister is too experienced not to understand the dire needs across remote Australia, and may well be laying the groundwork for some greater investment in remote communities, perhaps at the expense of non-remote expenditure.

A third possible explanation is that the Minister may have feared that the media would interpret the Prime Minister’s intervention as constituting an implied criticism or an undermining of his authority just weeks into his tenure. Or he may have feared that a consensus would emerge amongst stakeholders that he was irrelevant to the underlying decision-making on the Voice proposal. Some tough talking might have been seen as one way to diffuse any such criticism. In the event, it seems that neither of these eventualities occurred, and the Minister appears to continue to enjoy a honeymoon that insulates him from receiving realistic feedback. Nevertheless, the synchronicity of the two stories suggests that there was likely some linkage.

I don’t propose to attempt to choose between these potential explanations; I am happy for readers to make their own minds up. What is apparent however is the extent to which a complex web of political considerations (and players) infuse and shape what are ostensibly neutral policy pronouncements in the Indigenous Australians portfolio.  

Conclusion

There are clearly substantial opportunities for both the nation as a whole, and the Government, in having a respected Indigenous person such as Ken Wyatt in charge of the portfolio. This opportunity is magnified by the fact that the Opposition has two Indigenous shadow ministers in Linda Burney and Patrick Dodson. However, there are also considerable risks, for the nation and for Ken Wyatt himself, that the Government will see the appointment of an Indigenous person as minister as a ticket of leave not to expand the policy envelope, but to continue ‘business as usual’ and perhaps to make further expenditure cuts to Indigenous programs. I hope that this rather cynical interpretation is not the case, but one would have to be naïve to believe that it is not one potential outcome.

Only time will tell whether the opportunities or the risks eventuate. In the meantime, to maximise Minister Wyatt’s leverage and influence within the government and thus his eventual success in the portfolio it will be imperative that he is publicly pushed by key Indigenous peak bodies and by the media and the community at large to deliver tangible policy and program outcomes for Indigenous citizens. In particular, the needs and aspirations of remote Indigenous communities, who comprise the most disadvantaged citizens in the nation, require ongoing advocacy and policy attention. The Minister was absolutely correct in pointing to the importance of policy focussing on remote opportunities and disadvantage.

Also implicit in the Ministers comments is the reality that individual Ministers have finite levels of influence, and power. They rely on the community at large to signal to the Government when policies are inadequate or not hitting the mark. Without this pressure, Governments will take the path of least resistance. In the Indigenous policy space, the political influence of the Indigenous community is severely circumscribed by its low population base. In remote Australia, Indigenous political influence approaches zero (and this is the challenge to which the Minister appeared to be pointing).

The larger issue, not addressed by the Minister, is how to engage the wider community in supporting better policy responses by governments in the Indigenous policy domain. Without a broader support base, Indigenous interests will continue to be marginalised by the Australian political system. All of us, whether Indigenous or not, have a role in keeping the Government up to the mark in advancing good policy for the Indigenous Australians portfolio.