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While Ken Wyatt tries to find a model for recognition that will appease his party, a grassroots movement is hoping to win public support for a voice to parliament. By Karen Middleton.

Coalition divided on First Nations voice

As confusing messages emanate from the Morrison government on the issue of First Nations’ constitutional recognition, the leaders of the unprecedented dialogues that led to the 2017 Uluru Statement from the Heart are making a clear point in response: they weren’t addressing the government, they were addressing the people.

Prime Minister Scott Morrison has vowed to veto any move to enshrine an Indigenous voice in the constitution, but the proponents of the statement’s three key exigencies are pushing on with their quest to persuade the nation.

They are drawing on campaigns past – primarily the 1967 referendum to remove discriminatory constitutional clauses so Indigenous Australians were no longer excluded from the national census or the only specified group about whom the government could not make special laws.

That success came through a people’s movement, which carefully explained why the change was necessary. Eventually, an overwhelming majority of Australians agreed.

University of New South Wales constitutional law professor and Indigenous pro vice chancellor Megan Davis, one of the Uluru dialogues’ spokespeople, says this is what its authors seek to emulate.

“The Uluru Statement from the Heart was issued to the Australian people because it was understood that this reform needed the Australian people’s support to have momentum, like 1967,” Davis told The Saturday Paper this week from Geneva, where she was attending a meeting of the expert Indigenous body of the United Nations Human Rights Council to which she was recently re-elected.

While the statement’s components are being explained in international forums, the most significant work is going on at home.

“Currently, there are many Aboriginal and Torres Strait Islander leaders and communities who are doing grassroots, on-the-ground work across Australia yarning with ordinary Aussies about the statement and the voice,” Davis said. “They are at sporting carnivals and school fetes and local community days, explaining what a voice is and why it is needed.”

Their persistence comes despite rebuttals from successive prime ministers, Malcolm Turnbull and now Scott Morrison, of what the statement’s signatories see as its foremost proposal – that the constitution be amended, not only to acknowledge the special place of First Nations people in the story of Australia but also to permanently declare their views should be sought and their voices heard.

The statement’s framers envisage the voice, as it is being called for now, would ultimately be given an Indigenous name, with details spelt out in legislation.

They insist it be entrenched in Australia’s constitution because whenever past bodies have been created to ensure Indigenous people have a say in what happens to them, critics ensure those bodies are torn down.

The oft-cited example in this debate is the Hawke government’s Aboriginal and Torres Strait Islander Commission (ATSIC), which operated from 1990 until 2005, when the then prime minister, John Howard, abolished it.

Since then, despite First Nations people being the most disadvantaged group by virtually every measure, governments have rejected suggestions their input into policy and law-making need be a permanent requirement.

Instead, governments have retained control of the make-up of any Indigenous body from which they sought advice, as well as the power to abolish it.

In a paper published last month through the Centre for Aboriginal Economic Policy Research at the Australian National University, former longtime officials in Indigenous affairs Neil Westbury and Mike Dillon examined the legacy of ATSIC in relation to the voice.

“ATSIC was explicitly designed to have both executive and representative functions in an attempt to provide Indigenous interests with a voice inside government that had legitimacy and could not be overlooked on the grounds that it did not represent Indigenous citizens,” Westbury and Dillon write.

They say important improvements were not made, and as a result the organisation ultimately lost legitimacy with government, the public and its own people.

While ATSIC’s programs were “largely effective”, it became a foil for government criticism of any lack of progress on seemingly intractable issues. Its existence raised Indigenous expectations without it being funded properly, without adequate education about its processes and without appropriate mechanisms to manage internal disputes.

The organisation fell victim to sectoral interests – not unlike what happens with the agriculture portfolio and the National Party, according to Westbury and Dillon.

Instead of acting to improve ATSIC structurally though, as a government review and the commission itself recommended, the Howard government scrapped the commission. The authors argue its basic design was sound and should have been built upon.

Dillon told The Saturday Paper that ATSIC was “a burr under the saddle of the Howard government”.

“Indigenous affairs is an ideological touchstone for the conservatives,” he said. “It’s something they always come back to. It’s a bit like virtue-signalling [is] on the left.”

Dillon said the ATSIC experience is an example of what happens repeatedly in Australia when Indigenous people seek to gain influence.

“The key point with ATSIC is that it just shows that Aboriginal people can’t seem to accumulate institutional strength,” Dillon says. “Every time something is put up, it’s knocked down to ground level. They can’t seem to build an institutional base.

“You saw pushback on ATSIC,” says Dillon, warning the same could happen with the proposal for the voice. “We’re seeing pushback now.”

Opponents of the voice have argued it represents a de facto third chamber of parliament, but on Thursday Nationals MP Barnaby Joyce admitted he was incorrect to represent the voice that way, saying, “I’m wrong on the third chamber”.

Megan Davis and fellow Indigenous leaders and Uluru dialogues spokespeople Pat Anderson and Noel Pearson issued a statement last week insisting there was “nothing to fear from the voice”.

“It is not a third chamber in parliament and would have no veto or legislative power,” they said. “The legislation that establishes the body of the voice will be capable of change, so it is not about cementing into the constitution a static body. The details around the voice were purposely unfinished as it was always intended that they would be defined through a consultation process with the Australian people.”

They said that could happen through a co-design process, for which the April budget contained $7 million.

Another $190 million has been set aside since 2016 to fund a constitutional recognition referendum.

After becoming prime minister last year, Scott Morrison echoed Malcolm Turnbull’s rejection of a constitutionally enshrined voice but did not rule out a legislated version or more general constitutional recognition.

Once re-elected, Morrison spoke about prioritising issues of Indigenous disadvantage – especially high suicide rates – and appointed Western Australian MP Ken Wyatt as the nation’s first Indigenous minister for Indigenous Australians, which proponents of recognition hoped signalled a shift.

During Reconciliation Week, Wyatt seemed to leave open the possibility of a constitutionally entrenched voice.

“I have an open mind,” he told journalists on May 31 in Perth. “I certainly want to work with our Indigenous people across the country and find solutions that [are] acceptable to both Indigenous and non-Indigenous Australians … The issue is the set of words and how the voice is defined because that has an element of complexity, but it also has an element of simplicity; in that Aboriginal people are saying: listen to us when you make your policies.”

Ahead of his National Press Club address last week, Wyatt was still not ruling out the idea, announcing he aimed to hold a referendum on constitutional recognition within the next three years.

He said even the best-intentioned policies and programs had tended to take a “top-down, command-and-control” approach “as if Aboriginal people didn’t know what they needed or wanted, as if proud members of one of the world’s longest-lived civilisations have nothing to say, no wisdom to offer about what would help their families thrive and their communities flourish”.

But two days after Wyatt’s speech, The Australian reported that Morrison would indeed veto any move to enshrine an Indigenous voice in the constitution.

That morning, Wyatt told Radio National’s Breakfast program, he was committed to constitutional recognition – but not enshrining a voice.

“I will consider everything that people put to me but we have to have a pragmatic outcome,” he said.

“A voice enshrined in the constitution would run into trouble … Often legislation is the fairer way of taking forward a number of matters.”

 

Before the federal election and his portfolio elevation, Wyatt drafted a proposal, which he presented to Morrison in February.

The draft was to create a “Makarrata Commission”, combining two of the Uluru statement’s three demands – the call for a commission to deal with agreement-making and truth-telling and the call for a voice. Wyatt’s spokeswoman told The Saturday Paper he did not intend for his version to be enshrined in the constitution.

The proposal’s existence emerged via a leak to Brisbane’s Courier-Mail newspaper, published on May 30 – the day after Wyatt was sworn in as the minister for Indigenous Australians.

The report said the proposed commission would have input into policies affecting Indigenous Australians, “including employment, justice, health, education, child safety and native title”.

The proposal’s existence was a surprise to Indigenous leaders, who had not been consulted.

Some saw the leak – and its timing – as a warning to both Wyatt and Morrison from conservative opponents about what they saw as radical reform.

The Home Affairs minister, Peter Dutton, is among those opposing any move to enshrine an Indigenous voice in the constitution.

“We’re not in favour of a third chamber or a separate voice,” he told the Seven Network’s Sunrise program last week. “We’ve got a very strong democracy. We want to see more Indigenous people in the parliament.”

Appearing on the same program, the opposition leader, Anthony Albanese, endorsed the Uluru statement.

“It’s not a third chamber,” Albanese said. “It simply says that where issues affect First Nations people … they should be consulted. It’s as simple as that. It’s about respect.”

Linda Burney, Labor’s shadow minister for Aboriginal affairs, told The Saturday Paper: “We recognise that to achieve successful reform, you need a bipartisan process and we will work collaboratively as much as possible with the government to achieve that.”

Wyatt, who was unavailable for interview due to illness, favours a voice involving local and regional bodies, co-ordinated at the national level by an overarching advisory body he likens to the Productivity Commission.

The parliamentary joint select committee that examined the Uluru proposals last year, co-chaired by Liberal MP Julian Leeser and Labor senator and Indigenous leader Patrick Dodson, laid out a range of options for enshrining a voice and for the process that could lead to it.

The Uluru leaders favoured inserting a new chapter nine into the constitution covering First Nations people, with a section on “The First Nations Voice”.

They favoured holding the referendum before designing the detail of the body. Some who shared that view pointed to the failed 1999 referendum on an Australian republic, in which Australians weren’t asked about the general principle, only about one specific model – which they rejected.

Other Indigenous leaders, including former member of the Turnbull government’s Referendum Council Mick Gooda, co-chair of Reconciliation Australia, Professor Tom Calma, and Indigenous Social Justice Commissioner June Oscar, argued that a constitutional change would only succeed if details were designed and road-tested first.

Wyatt’s timetable is for action – minus a voice – much sooner. He has begun consultations on more general constitutional recognition.

In meetings during the past week, some of Australia’s biggest corporations have told Wyatt they support enshrining a voice in the constitution and that it should not be feared by Australians.

ANU authors Neil Westbury and Mike Dillon argue the prerequisite for progress is to “circumvent the dominant coalition of self-serving interest groups and directly convince a substantial majority of Australians that Indigenous recognition is not a threat, but an opportunity … for a fairer nation, a more prosperous nation, a better-governed nation and an opportunity for a more honest nation that accepts its history and is prepared to shape its future in the interests of all its citizens.”

It is to the citizens that the Uluru proponents are now putting their case, hoping the political process catches up.

Megan Davis borrows a quote from Melbourne University Emeritus Professor Cheryl Saunders, founding director of the Centre for Comparative Constitutional Studies: “There have been moments in history when it has been necessary to bypass organised politics to get important ideas off the ground. This seems to be one of them.” 

This article was first published in the print edition of The Saturday Paper on Jul 20, 2019 as "Coalition divided on First Nations voice". Subscribe here.

Karen Middleton
is The Saturday Paper’s chief political correspondent.