Megan Davis
Bad faith over Indigenous Voice

The First Peoples of this country are unfailingly welcoming people, with important protocols for receiving strangers on country. This custom makes revealing the coarse, ill-mannered nature of the Turnbull government’s decision to shut down open and free debate on a referendum proposal to enshrine in the constitution an “Indigenous Voice to Parliament”. It reflects an acute lack of cultural respect and understanding from a triumvirate who audaciously claimed, in a press release, that an Aboriginal-designed proposal to improve participation in the democratic life of the state was a “setback for reconciliation”.

Think about the hardness of heart it requires to unilaterally disavow the “Uluru Statement from the Heart” on the anniversary of the return of Uluru–Kata Tjuta National Park to its traditional owners, the Anangu. It reveals cold-hearted calculation, a deliberate act of cruelty to inflict as much damage as possible on the historical consensus garnered at the national constitutional convention by Aboriginal and Torres Strait Islander peoples.

Law reform is a long game, though. At least for impecunious small-numbered peoples in liberal democracies, such as my people. We never expected reform would be delivered on a platter. While the timing of the announcement was callous and brutal, the lengthy history of Aboriginal advocacy for reform rendered the hasty, ham-fisted decision relatively unsurprising.

Surprising, though, was the sham reasoning. First, the proposed voice to the parliament is by no means a “third chamber” of parliament. The voice is an advisory body that would provide advice “to the parliament”. Its functions are for the democratically elected federal parliament to wholly determine in the future. A constitutional two-step design process, and the decision to defer functions to the parliament, is conventional throughout the world. This two-step process exists in our own constitution, enacted in 1901, whereby numerous bodies, including the federal judiciary, were enshrined in the constitution with the detail to be later determined by parliament. The dialogues designed the voice utterly consistent with fundamental Australian public law principles.

It strains credulity to think the Commonwealth attorney-general, of all people, was not aware of this common constitutional design technique. George Brandis is the first law officer of the country and the profession he leads has declared in no uncertain terms the falsehood of the assessment the government has made and the exigency of revisiting it. The president of the New South Wales Bar, Arthur Moses, SC, rebutted the government’s assertions, arguing that this singular alteration to the constitution will have “no impact on the sovereignty of the parliament or create a third chamber of parliament”. The Law Council of Australia, the legal profession’s peak body, accused the government of having “misrepresented” the proposal for a voice.

The only explanation for such a blatantly and deliberately misleading categorisation of the voice – a cautiously designed alternative to a non-discrimination clause that the conservatives rejected outright five years ago – is what Noel Pearson called a “dog whistle”. As more detail comes to light, there appears to have been duplicitous conduct from some members of the government, telling proponents of the voice for two years it had merit as an alternative to a “one clause bill of rights” while simultaneously telling Warren Mundine and others it never had a chance. For most of us plebs, who have no special access to power, we rely on public pronouncements to guide the way. If such accounts are true, the government was wasting the public’s time and taxpayer coin insisting everything was on the table while telling insider elites it would never be taken seriously. This is bad faith.

The second issue that was surprising in the government’s decision is the definitive dismissal of the model, because the prime minister believes it would not succeed at referendum. The ink is barely two months dry on the council’s report. How does he know? There was no open public debate. Nigel Scullion, the minister for Indigenous affairs, said he had spoken to “pollsters”. Well, who?

There is an appetite for symbolism among the political elite, delusions of a quick fix: get recognised today, they would say, build a foundation and in 20 years go for what you really want. Seduced by positive polling that queried Australians about vaguely “recognising” Indigenous peoples, without an agreed model of recognition, the political parties were led down a path of least resistance. Except there was resistance. Resistance from the “to be recognised”.

Patrick Dodson, Noel Pearson, Kirstie Parker and I argued in mid-2015 for a new process, because we knew that Aboriginal and Torres Strait Islander peoples had not been properly consulted. We were worried that communities had disengaged and did not seek the minimalist form of recognition that Recognise was promoting. Following this, a meeting was held with then prime minister Tony Abbott and opposition leader Bill Shorten.

Overlooked in almost all political analysis of the past week is an important fact, about which our leaders were unanimous: symbolism and minimalism alone is out. Those present in 2015 agreed on the following:

“Any reform must involve substantive changes to the Australian constitution. It must lay the foundation for the fair treatment of Aboriginal and Torres Strait Islander peoples into the future.

“A minimalist approach, that provides preambular recognition, removes section 25 and moderates the race power, does not go far enough and would not be acceptable to Aboriginal and Torres Strait Islander peoples.”

This position has never altered since 2015, not throughout the dialogues, nor at Uluru. Yet in rejecting the voice, the government wheeled back to this very package of reforms already rejected in 2015 and again in 2017. Where is our voice?

The huffing and puffing of parts of the commentariat about the disappearance of s25 and the race power at Uluru must be corrected. The race provisions were proposals discussed in the dialogues. Section 25 of the constitution is a dead letter, it’s inoperative. I defy any of those lamenting s25 to stand before dialogue participants, who have forensically analysed each and every proposal for reform, and tell them that s25 of the constitution enables states to pass discriminatory laws. It is utter, misleading rot. The states are bound by the Racial Discrimination Act. On the head of power, the multiple options for fixing the so-called “race” power were workshopped in the dialogues. No one could provide an iron-clad guarantee to the dialogues that the variations on the race power could prohibit the parliament passing discriminatory laws in the future. That’s a legitimate, sophisticated reason for dialogues to decide that particular reform was not the highest priority.

The law to one side, there are a number of critical points journalists have overlooked in their undercooked analysis of the Referendum Council’s work. The expert panel conducted its work in 2011. A key distinguishing feature of the expert panel is that it did not comprehensively or adequately consult Aboriginal and Torres Strait Islander peoples. This matters in any exercise that involves “recognition”. The council was backfilling for the government: what does meaningful recognition mean to the “to be recognised”? For the first time in a 10-year recognition project, we now know.

More importantly, five years is a long time between drinks. The expert panel’s work was done after the Apology, smack bang in the middle of a mining boom, in a nation filled with relative optimism. Australia was a different country. So, too, Aboriginal Australia. When it was first elected in 2013, the Coalition government overhauled its policy approach to the affairs of Aboriginal and Torres Strait Islander peoples, introducing the Indigenous Advancement Strategy. This saw the pooling of Indigenous money into a single bucket and, ruthlessly, the razor was taken to Aboriginal community programs across the nation.

Recently audited by the Australian National Audit Office, to severe criticism, the Indigenous Advancement Strategy gutted Aboriginal communities of funding and control. At the time, the social justice commissioner, Mick Gooda, said “we are now witnessing one of the largest scale ‘upheavals’ of Aboriginal and Torres Strait Islander affairs”. Those who know Aboriginal affairs understand how destructive this policy has been. The elder statesman of Aboriginal affairs, former senator Fred Chaney, warned that the recognition project will be hampered by the Commonwealth policy approach. He was right.

It became immediately apparent at the constitutional dialogues that there was a problem with the narrative of “recognition” apropos the chaotic and destructive paternalism of Commonwealth public policy. The animus towards the Commonwealth and Recognise was so forceful we had to rejig our first day to allow communities to ventilate these issues. The Indigenous Advancement Strategy and the experience of voicelessness and powerlessness became inextricably linked to the solutions designed by the dialogues. Surely it comes as no surprise that compelling the government to listen to communities and give them a voice in decisions about their lives was the highest and singular priority? It’s easy to browbeat the mob about s25 when you don’t live in a community that is suffocated by faceless Canberra bureaucrats and escalating youth suicide.

One of the reasons attributed to failed referendums by constitutional scholars is manipulation by political elites. Rather than try to understand the nuances of failed referendums, in this iteration of recognition there has been an over-egging of bipartisanship as the singular factor in successful referendums. Bipartisanship matters. Before you get to the point of agreement, however, there needs to be robust public debate and a ventilation of arguments for and against. Instead, the elites have shut down this debate using spurious legal argument and what Scullion said is data from unnamed “pollsters”.

The singular proposal for reform is thrifty, conservative, modest. It leaves the functions of the voice entirely up to a future parliament. As a constitutional lawyer who has taught public law since 2002, I understand the extreme form of parliamentary sovereignty we have in Australia. As a member of the expert panel, I was a leading proponent of a racial non-discrimination clause despite all the warnings from more learned colleagues about Australian parliamentary culture. The voice was a proposal designed to provide a front-end check and balance.

Chaney once said that, quintessentially in the field of Aboriginal and Torres Strait Islander affairs, political timetables trump workable timetables. This makes reform susceptible to failure: a top-down approach whereby political elites determine the limits of what Australians will tolerate. This is what has happened with the government’s decision. On the basis of pollsters and whatever shyster legal advice suggested the voice as a “third chamber”, all the good faith our routinely disappointed people invested in this process was shattered. The settlers are fond of citing the figure that says only eight of the 44 referendums held since federation have been won. They thought they could game the Australian people by replicating 1967, but little did they realise they were merely replicating the reasons for the failed referendums: elite manipulation by those who think they know best.

The exigency of the voice for the dialogues was driven by the current government’s policies, so it’s unsurprising they don’t quite grasp the desperation of my people for change. The government’s decision, although discourteous and bitter, has triggered what’s been missing for 10 years, an authentic people’s movement, a coalition of Australians from all walks of life who found the government’s rejection of the voice, and the silencing of public debate, as the most powerful and persuasive reason for the reform. The Uluru Statement from the Heart was issued to the Australian people purposefully. Over the decades we have handed petitions to governments only to become relics held hostage in Perspex displays in Parliament House. Governments come and governments go. To build momentum for change we know we need the Australian people to walk with us and the Statement from the Heart is their mandate. We are not resiling from this singular alteration. This isn’t the end, this is only the beginning. How could it be otherwise?

This article was first published in the print edition of The Saturday Paper on November 4, 2017 as "In bad faith".

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Megan Davis is a Cobble Cobble woman from Queensland, and pro vice-chancellor and Balnaves chair in constitutional law at the University of New South Wales.

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