Sunday, July 31, 2022

The Voice

I cannot match Prime Minister Albanese's eloquence in his speech at the Garma Festival that released his initial view of the constitutional question and provisions to give effect to the Voice requested by the Uluru Statement from the Heart. But I can respond to his invocation:

All Australians have the chance to own this change, to be proud of it, to be counted and heard on the right side of history.

I want to be counted and heard as being on the right side of history on this matter. However, to be successful the Prime Minister needs to do more than invoke a sense of justice in calling for support for his proposal. For evidence he need look no further than indigenous voices in the Senate that do not yet support the creation of the Voice. They come from two sides; one argues the voice is mere symbolism, while the other argues that treaty is more important than voice.

The first view comes from Senator Jacinta Nampijinpa Price, who in her first speech this week said:

It is the same attitude we hear with platitudes of motherhood statements from our now Prime Minister, who suggests, without any evidence whatsoever, that a voice to parliament bestowed upon us through the virtuous act of symbolic gesture by this government is what is going to empower us. This government has yet to demonstrate how this proposed voice will deliver practical outcomes and unite, rather than drive a wedge further between, Indigenous and non-Indigenous Australia.

This is a reasonable position, how can we believe the Voice will make any tangible difference. However, the Senator's views at times seem confused. 

On the one hand she says "I am an empowered Warlpiri Celtic Australian woman who did not need and has never needed a paternalistic government to bestow my own empowerment upon me" and "I believe in small government, which equates to small bureaucracy, so that Australians may get on with their lives more effectively." 

On the other hand she bemoans two acts this week - the end of the grog bans from the intervention and the end of the cashless welfare card. Both of these are examples of interfering big government telling communities the solutions appropriate to them. Hopefully the opportunity for community based alcohol bans and for optional cashless welfare cards will not be lost. 

Senator Lidia Thorpe has explained her opposition to the Voice because she believes we need to start with truthtelling (that there is an unfinished war) and a treaty (to end that war) -- in this she also explains how she thought the statement was prepared by an insufficiently representative group. She also believes the referendum will fail because of opposition from indigenous people.  

When we get to the wider community there are equally confusing arguments, including:
  1. It is a racially discriminatory law.
  2. It is just symbolism, it doesn't change anything. We need to focus on the domestic violence and sexual acts on children first. 
  3. It is more than symbolism and damages our democracy.
  4. There isn't enough detail on what we are voting for.
In this I am reminded far more of the politics of climate change than I am the referendum on the republic. The former was serious stuff, while the latter was mostly symbolic. (Indeed, we should stop talking about the republic referendum in the same breath as the referendum on the Voice).

In his book Power Failure Philip Chubb argues that a reason why the Rudd government failed in implementing climate policy was that it failed to keep reminding the public why it was important. Similarly, it is not enough for Albanese to rely on existing levels of support, he needs to ensure support continues. 

To do that I think he needs to embrace Noel Pearson's "three epic strands in the grand narrative" which Peter Hartcher reminds us Peter Dutton quoted this week. Pearson's succinct statement, made at the conclusion of his speech to the 50th annversary dinner for The Australian newspaper on 15 July 2014 were:

Our nation is in three parts. There is our ancient heritage, written in the continent and the original culture painted on its land and seascapes. There is its British inheritance, the structures of government and society transported from the United Kingdom fixing its foundations in the ancient soil. There is its multicultural achievement: a triumph of immigration that brought together the gifts of peoples and cultures from all over the globe — forming one indissoluble commonwealth.

Hartcher doesn't record whether Dutton also quoted the final sentence Person uttuered:

We stand on the cusp of bringing these three parts of our national story together — our ancient heritage, our British inheritance and our multicultural triumph — with constitutional recognition of indigenous Australians. This reconciliation will make a more complete commonwealth.

The story is, of course, that the Uluru Statement arose out of that process. 

And this statement gives us the important response to the first objection. The proposed Voice isn't based on race but sovereignty. The Aboriginal and Torres Strait Islander peoples are being given this recognition because this country belonged to their ancestors. Then the British came, uninvited, as soldiers, convicts and then free settlers. They brought with them diseases that devastated populations, they took the land and resources, and, yes, they killed those who resisted.

Inca Clendinnen's excellent Dancing with Strangers attempts to understand the coming together of the inhabitants of the area around Sydney Harbour and the new arrivals in January 1788. Though she only has the recollections of the British to work from, she describes two distinct cultural shocks. 

The first was the communalism of the locals confronting the British concept of property. The aboriginal people let the British fish in their harbour and rest on their land, but were surprised when the British stopped them acedssing the food in the stores. 

The second was the astonishment of the locals at the barbarity of the invaders; where the locals used ritual spearing the British flailed men's backs with whips. (This should be contrasted with Senator Nampijinpa Price's description "We have a foundation of a sophisticated but brutal culture, where it was kill or be killed over resources such as water, women and later livestock—food for survival—or from doing the wrong thing like marrying the wrong way or sharing knowledge that's not yours to share". Whether Clendinnen misrepresents the first nation people around Sydney, or the Senator is misinterpretting her own nation's experience, or whether this is an example of cultural difference across first nations I don't know.)

I don't want to reignite the debate over aboriginal history and the extent of "frontier wars", but to deny there were killings is naive. To do so on the basis that the only truth is the records of the colonisers is deceitful. I offer as evidence only a passng reference in the preface to A Tale of South Australia During the Gold Fever. The authorship of this book is credited to Clara Morrison, but its real author was Catherine Helen Spence whose main claim to fame was as a leader of the campaign for female suffrage in the 1890s. The book itself is the story of how a South Australian town survived when all the men went off to the Victorian goldfields. The preface, describing how the men made the journey to the goldfields, said:

Others, again, pursued the shorter but more adventurous roue, across the inhospitable region which separates the two colonies, startling the wild tribes of the interior by their apparition, and leaving occassionally behind them small mounds of earth to mark the place where the strong man had bit the dust. 

We do not need to belabour the extent of this killing, we don't need to debate the technicalities of whether this is self-defence or what degree of force a land owner (the indigenous) are entitled to use against a tresspasser. But it happened. 

As the PM said "we have cast aside the discriminatory fiction of terra nullius" (the High Court did that). What we haven't done is engaged with the consequence of the action taken by those acting in the name of the British Monarch. We can't undo history, but we can acknowledge past wrongs and seek to put it right.

A common response is to argue that past wrongs are over-compensated for by current benefits. This is framed as the benefits brought to the country by Western civilisation, its institutions and its science. This defence, unfortunately, ignores the distribution of those benefits which flow mostly to the colonisers not the dispossessed.  

It is acknowledgement of this entrenched indigenous disadvantage that lies at the heart of  the second objection; the Voice as mere symbolism that it won't change anything. 

There are two parts here. The first is to call out the focus of some on one aspect of indigenous disadvantage, alleged high rates of domestic violence and sex crimes against children. Focussing on this aspect of disadvantage rather than the whole context of health, education, housing has the consequence of placing the focus on first nations people as somehow inherently evil. 

The second part is to recognise that this misses the point of "for what" the Voice is being created. This, perhaps willfully, misrepresents what the Uluru Statement said about the Voice:

We seek constitutional reforms to empower our people and take a rightful place in our own country. When we have power over our destiny our children will flourish. They will walk in two worlds and their culture will be a gift to their country.

We call for the establishment of a First Nations Voice enshrined in the Constitution.

First Nations want things to be better, they want to be empowered to make them better, and they want the constitutional protection that this voice cannot be taken away. Here it is appropriate to talk of ATSIC.

Wikipedia tells us:

The Aboriginal and Torres Strait Islander Commission (ATSIC) (1990–2005) was the Australian Government body through which Aboriginal Australians and Torres Strait Islanders were formally involved in the processes of government affecting their lives, established under the Hawke government in 1990. A number of Indigenous programs and organisations fell under the overall umbrella of ATSIC.

The agency was dismantled in 2004 in the aftermath of corruption allegations and litigation involving its chairperson.

The reason why First Nations don't want just a new body is so that it can't just be taken away. The reason we need to not put too much detail in the Constitution is the body may need reform in the future to keep it contemporary and effective. 

The interesting part is that the Uluru Statement itself wasn't very specific about the nature of the Voice. The Indigenous Voice Co-design Process: Final Report to the Australian Government of July 2021 makes interesting reading on this point. It envisions a voice that is composed of local and regional voices building up to the national voice. The intention of these different geographic voices isn't just to be part of a representation structure getting to the national voice, it is for those voices to engage directly with appropriate government and other bodies on matters of local and regional significance. 

This is an important part of the aspiration for the Voice. That said, the three propositions that the PM has proposed to be included in the Constitution are not, to my mind, enough. He has proposed:

  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.
My first difficulty is the name - the Uluru Statement called it the "First Nations Voice". This has a benefit over the ATSI version in two ways. The first is the breaking of a connection to ATSIC, and the inevitable reference to it as ATSIV. The second is that it reminds us of the great diversity of cultures and experiences that exists in the First Nations. 

The big difficulty I have though  is that anybody in the nation may "make representations to Parliament and the Executive Government". My preference is that the second clause come third and that it be strengthened to say that the Parliament must make laws providing for the right of the Voice to table a document in the Parliament and for a representative of the Voice to address the Parliament on any matter relating to the well-being of Aboriginal and Torres Straight Islander Peoples. 

This provision provides meaning to the concept of "may make representations" and guarantees that representations will be heard. It also tightens the language to focus very specifically on the concept of the well-being of first nations people, because quite frankly everything government does relates (potentially) to any person. 

The third and fourth points can only be addressed by providing more than just the warm inner glow of their being a Voice. If the Co-Design Process had clearly landed on a design then the simplest process would have been for the Government to enact, along with the Act to change the constitution, a Voice Establishment Act that would commence on the constitution amendment being ratified. 

However the Co-Design Process didn't do that and instead called for more work to build the local and regional elements first. This can be the first tasked assigned to a body that could be legislated to come into existence with the passing of the amendment. The body should be designated the Interim First Nations Voice and should be composed of appointed members. It should otherwise look a bit like the proposals for the national voice and be composed initially of two representatives from each State and Territory and be supported by its own Office of the National Voice. 

The principle task of the Interim First Nations Voice would be to work with State and Territory governments to implement the model of local and regional voices, and, once they are established, work with the local and regional voices to finalise the model for the national voice to be provided as a recommendation for enactment by the Parliament. 

To put it simply, the Government could legislate for the process to establish the voice as the element of providing greater clarity.  There needs to be more concrete planned action at the time of the constitutional amendment. 

If not now, when?

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