Planning from the head must follow statement from the heart

It’s not that I was surprised to read Peter Dutton making Coalition policy by media statement on Friday. It’s more that he would do so for the Indigenous Australians portfolio. It signals to the public and the party that the responsible minster, Ken Wyatt, is thus publicly stripped of any authority by the LPA’s extreme right wing, presumptively led by Home Affairs Minister Dutton after nihilist-in-chief Tony Abbott was voted out of Parliament.

What Dutton’s comments mean for prime ministerial authority remains unclear: was he speaking for Prime Minister Scott Morrison, in concert with him, or despite him? The Weekend Australian (14 July 2019) says Morrison is opposed to an indigenous Voice to Parliament (VtP) because it would constitute a third parliamentary chamber. That reasoning is pure sophistry, as we shall see, which assumes most Australians are dopey enough not to know better. A reasonable assumption after the May 18 election outcome.

Morrison was not quoted directly. The dishonest device of ‘senior sources’ was invoked. Does that mean Rupert Murdoch’s principal Australian propaganda organ was setting the policy for both Morrison and Dutton? Or did it reflect a closed-doors agreement between unnamed parties, possibly including unelected members of the Coalition government (like sponsors, sundry plutocrats, and other apparatchiki)?

It’s probably reasonable to suppose that everyone properly described as ‘senior sources’ now actually knows what to think and say on the issues.

The new indigenous Australians’ agenda … ?

Ken Wyatt, newly minted Minister for Indigenous Australians, was quoted at length to clarify that an indigenous VtP would not be constitutionally guaranteed, and could in fact be multiple voices. As late as this morning journalists were debating whether this was at odds with what Wyatt told the National Press Club on 10 July … but wasn’t really.

All Wyatt told the NPC audience was that he and the prime minister were committed to recognising indigenous Australians in the Australian Constitution. Such a recognition need never mention any VtP. It was the reporting of the speech that read a constitutionally guaranteed voice into Wyatt’s ambiguous words.

It now transpires that even a non-constitutional VtP will be conditional on a high degree of consensus about its form and wording. The prospect of such an outcome is witheringly small.

In the light of Dutton’s statements, and Morrison’s weekend comment that he is a constitutional conservative, as well as his indirect support for the Howard option (a fleeting mention of first Australians in the preamble to the constitution) it seems likely that Wyatt will be allowed to make whatever public statements he likes on indigenous affairs, but he will be ;interpreted and corrected’ forthwith by Dutton. And maybe Morrison. Or by both, after the Australian publishes unattributed statements they will then repeat verbatim.

The reality is the Coalition government has not taken any real steps towards enabling any part of the proposals made by the Referendum Council in 2017. Wyatt’s appointment appears so far to be no more than marketing by Morrison. Wyatt is a Noongar elder from Perth, denoted as such by the kangaroo skin coat and feathers from a red-tailed black cockatoo he has worn for some photo opportunities, notably the ones with Morrison, signalling ‘whitefella friend to blackfella’ lies. But Wyatt’s standing in the party room is completely untested, and the all-powerful commandant for secret police, press censorship, and other shenanigans appears to have consigned him to a highchair around that table.

Confusion reigns

Worse, in all the news media commentary following public statements by Wyatt, Dutton, and Morrison, it seems even journalists and academic commentators are confusing the Uluru Statement from the Heart with the recommendations of the Referendum Council.

The statement is an aspirational resolution of the Council’s final consultative forum near Uluru, but does not constitute concrete recommendations in itself. In fact, that statement may have muddied the waters by mentioning high rates of indigenous incarceration, which is not the direct subject of any Council recommendation.

Without a much clearer understanding of what the concrete recommendations for change are, public discussion of constitutional recognition is just empty rhetoric.

It doesn’t help much that the Labor opposition seems no more concerned under Anthony Albanese to take a stand on political economy or socio-economic justice issues than it was under Bill Shorten. And no one on that side of the fence seems to have made any effort to clarify the issues surrounding constitutional recognition for first Australians.

While Dutton’s opposition to any policy position is probably the best possible reason for supporting it, anyone looking for progress on the matter of constitutional recognition for an indigenous consultative body is likely to be disappointed for at least a decade, if not forever.

And that is not entirely the fault of a newly emboldened extreme right wing government. It appears that not much has been done to turn the Referendum Council’s recommendations into realistic, workable proposals by anyone.

Waaaay back when …

On 7 December 2015, Prime Minister Malcolm Turnbull and opposition leader Bill Shorten appointed a Referendum Council to lead a consultative effort focused on constitutional recognition of Aboriginal and Torres Strait Islander people. The work of the Council was also to include consideration of the work done by the 2012 Expert Panel on Constitutional Recognition of Indigenous Australians. The report of that panel runs to more than 300 pages, considering multiple options in some depth and technical detail.

The Referendum Council submitted its final report to the Turnbull Government on 30 June 2017. Its recommendations included:

  1. that Aboriginal and Torres Strait Islander people be represented with a constitutionally recognised VtP which is to consider and have input on how laws affecting indigenous people will be implemented;
  2. an ‘extra-constitutional’ Declaration of Recognition by all Australian Parliaments; and
  3. establishment of a Makarrata Commission ‘with the function of supervising agreement-making and facilitating a process of local and regional truth telling’.

While it is clear that the recommendation seeks an unspecified constitutional guarantee for the VtP, all the specifics of its composition and functioning are to be determined by the existing Commonwealth Parliament. So, the voice itself is to stand above political fashion-of the-day, but not its composition and functions.

The proposed Voice would not interfere with parliamentary supremacy, it would not be justiciable, and the details of its structure and functions would be established by Parliament through legislation that could be altered by Parliament.

—Referendum Council report, page 38.

It is the talk of constitutional recognition that gives rise to reactionary alarmism about a third chamber of parliament. That alarmism will not disappear while there isn’t specific language around the recommendation to dispel ignorance of the initial proposal, and fear of an unspecified change.

A declaration of recognition by all Australian state and territory governments is a matter for The Council of Australian Governments (COAG), and will run into the usual bureaucratic morass of death-by-committee on wording, if not also partisan infighting about the proposal itself. I don’t see the declaration as necessary or likely to succeed in the short to medium term (at least the next decade). Unless of course the electoral landscape changes quite radically within that time-frame.

Queensland’s Labor government has already pledged support for a treaty with its first Australians, but admits this could be a very long-term process: a decade or more.

What about the Makarrata Commission? It cannot really function as an ‘agreement-making’ body without legal standing, and what would such standing mean in terms of truth telling?

The Referendum Council looks at truth telling in several ways:

  1. there was indigenous law and sovereignty prior to ‘the coming of the British to Australia’, which were abrogated by British ‘invasion’;
  2. truth should be told about ‘frontier wars’ and ‘massacres’;
  3. Australia should stop commemorating British colonial figures instrumental in violence against, or oppression of, first Australians, including the theft of land and human rights abuses; and
  4. the contribution to Australia of first Australians should be recognised to a greater degree than it has been thus far.

It strikes me that official acknowledgement of the terra nullius doctrine to have been a lie, and British settlement to have been an invasion, opens the way to legal challenges of all property rights in the country. I cannot see any political party being willing or able to champion such a move.

As for re-writing racist or just lazy historiography, that’s a job for the academy and the remnant publishing industry. Parliament doesn’t get a say in that kind of decision. Moreover, to expect politicians to tell the truth about anything at all is a charmingly idealistic notion, but one that’s as unrealistic as it gets.

Worse, the present Coalition government is quite openly a representative of fiercely reactionary culture warriors who see merit only in WASP history and achievements. They tend to deny any wrongdoing at any point in history, even when confronted with significant evidence to the contrary.

Worst of all, at this point in time it appears as if the Labor opposition is a mere cypher. It certainly has shown no appetite for opposing the government on any issue, let alone to champion underdog causes.

In that context, the notion of a Makarrata Commission, or any such extravagance as public truth telling by the Commonwealth, seems like an extravagant fantasy.

What about the statement from the heart … ?

While the statement itself has emotional appeal, talking about incarceration rates sets an expectation that that there is an agenda to change criminal laws in Australia into a two-tiered system. That expectation immediately generates hostility from opponents to constitutional change. It was a serious strategic mistake to include that specific paragraph in the statement.

Many Australians would find it easy to sympathise with the sentiments expressed in the statement, I cannot but see it as an immature and foolish decision to publicise it as if it were a summary of the recommendations. Immature because it ignores the political realities of enormous challenges facing ay constitutional change (regardless of the flavour of government), and foolish because it offers a single point of attack for every critic who will not now have to ever bother to read the Council’s report and its actual recommendations, let alone to understand the issues at stake.

Where to from here?

It was obvious even in 2017 that the Turnbull Government was dominated by right wing extremists unlikely to be swayed by any appeal to emotion from anyone but the lunar right itself. If anything, that hard-hearted mean-spiritedness has metastasised in the two years since then.

Scott Morrison is on record making statements disparaging the poor and disadvantaged; he may never have made overtly racist comments about first Australians, but his intent was always clear, particularly when talking about enforcing exceptionally punitive measures against unemployed Australians in remote areas.

So, if any progress is to be made at all on constitutional recognition for first Australians, an action agenda has to be developed to offer concrete options that include specific draft wordings for possible referendum questions and COAG declarations. Preferably the agenda should also include quite detailed legislative proposals to give force to the VtP and the Marrakata Commission.

This agenda and its artifacts have to be developed by first Australians without expectation of Commonwealth funding or support. Then there must be lobbying of the government and opposition of the day, spelling out what steps should be taken, and according to what time-table. That lobbying must include the all-important ‘what’s in it for me’ consideration: the political parties and individual MPs and Senators have to be clearly told what benefit they would derive from supporting constitutional and legislative changes supporting the recommendations put to them.

This is serious, hard work that will not be done for first Australians by someone else. But without it, no Coalition government will take seriously the need for, or practicality of, reform in this area. And present indications are that the opposition isn’t up to the task of doing any better.

It seems to me that first Australians have to establish, or act as if they have already established, a properly constituted representative body, which should set the agenda and delegate the tasks of generating specific wordings and legislative instruments. If that doesn’t happen, the agenda will either be hijacked by privately funded lobbyists—and quietly killed off with bureaucratic and legal evaporation of its every intent and purpose—or it will wither away as everyone concerned loses interest.


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