Me­gan Davis on the bad faith of re­ject­ing the Voice to Par­lia­ment

The Saturday Paper - - Front Page -

The First Peo­ples of this coun­try are un­fail­ingly wel­com­ing peo­ple, with im­por­tant pro­to­cols for re­ceiv­ing strangers on coun­try. This cus­tom makes re­veal­ing the coarse, ill­man­nered 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 nondis­crim­i­na­tion 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?


ME­GAN DAVIS is a Cob­ble Cob­ble woman from Queensland, a pro vice chan­cel­lor and pro­fes­sor of law at UNSW, and a mem­ber of the Ref­er­en­dum Coun­cil.

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