Government and governance, Law, Social policy | Australia

16 July 2019

An ongoing inability to consult has caused failure after failure in Indigenous policy, but a Voice to Parliament represents an opportunity for better governance and most importantly, self-determination, Melissa Castan and Kate Galloway write.

Over two years since the launch of the Uluru Statement from the Heart, the policy direction of the Morrison government has emerged. The Federal Minister for Indigenous Affairs, Ken Wyatt, has said a proposal for constitutional recognition of Indigenous people will be put to the people for approval within three years. The Liberal party had promised $7.3 million to develop a proposal to take to a referendum during the 2019 election campaign, and a budget allocation of $160 million has been set aside to bring that referendum to the voters.

Soon after the election, an executive order established the National Indigenous Australians Agency, an executive agency attached to the Office of the Prime Minister and Cabinet.

It will be charged with coordinating policy and advancing programs like Closing the Gap. Important as it is to have identified oversight of programs for Indigenous Australians, the Agency is a far cry from the Uluru Statement’s vision: A Voice to Parliament.

More on this: Policy File: Towards a shared future

There have been other proposals aimed at ‘conservative’ institutional change, including in the submissions to the Joint Select Committee on Constitutional Recognition. However, there are sound policy reasons why the Voice to Parliament is the uniquely appropriate response to the question of how Australia embraces First Nations people within its legal and political institutions.

Firstly, as former High Court Justice Michael Kirby has pointed out, there is a precedent for multiple and diverse voices to Parliament.

The Australia Securities and Investment Commission, the Business Council of Australia, and the Productivity Commission all provide advice to guide decision-making within the remit of their operation. It is no radical step to envisage a Voice charged with providing the views of Indigenous Australians.

Further, constitutional entrenchment is both desirable and necessary. The constituency of the Voice is not an abstract notion such as economic efficiency or corporate interests.

Rather, the rationale of the Voice is to extend the right to self-determination to peoples who are underrepresented. It is well understood in international law that Indigenous self-determination must be constitutive and continuing.

More on this: Pod: Honesty is the best policy

This requires an institutional commitment to an international standard described as ‘Free, Prior and Informed Consent’. That is where the Voice to Parliament represents a distinct shift. Meeting the threshold for conservative institutional progress, it preserves parliamentary sovereignty whilst establishing participation through constitutional mandate.

Its constitutional status meets the requirement for continuing self-determination. It protects the institutional response from defeat simply through an ordinary Act of Parliament. In contrast, the new National Agency is vulnerable to repeal through executive order, an even lesser administrative process that threatens its continuity.

More fundamentally, the Voice is constitutive of self-determination. The Regional Dialogues that led to the Uluru Statement comprised a process that has engaged Indigenous communities around Australia in prioritising their own futures.

It is these Regional Dialogues that concluded in an invitation to all Australians to walk with Indigenous peoples ‘in a movement of the Australian people for a better future’.

More on this: Is Australia big enough for reconciliation?

Australia’s greatest policy mistake in Indigenous affairs has been one that has never been addressed. And so, we are condemned to repeat it. This mistake is the development of policy and legislation concerning Indigenous Australians without involving the communities affected. We have failed to establish proper legal relations with Indigenous Australians.

We did this in 1788, and continue to do so now. Failure to establish a proper basis for our relationships precludes genuine consultation and this has generated mistake after mistake. This is a manifestation of the unwillingness of the government to fulfill the right to self-determination.

The Voice provides the opportunity to engage in an effective governance process through finally upholding Indigenous Australians’ right to self-determination. It may not be perfect—when has any process garnered unanimous support? But the Regional Dialogues do represent a consensus approach, through their exhaustive attention to the process.

On the basis of the process for conceiving of the Voice, it is clear that this is the best manifestation of Indigenous peoples’ international, and Australian, right to self-determination.

For Indigenous and non-Indigenous policymakers alike, it is time for us to heed this invitation extended to us and listen to its message. To fail to do so is to perpetuate our own repeated failures of policy-making regarding Indigenous Australians.

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