A dialogue with the deaf (Part 1)

Part Twenty of a history of European occupation, rule, and brutal imperialism of Indigenous Australia, by Dr George Venturini.

A dialogue with the deaf

On 26 October 2017, exactly five months from the Uluru Statement from the heart, the Turnbull government rejected the Referendum Council’s call for a national Indigenous representative assembly to be inserted by referendum in the Constitution. Effectively it took the debate about constitutional recognition back to the point of departure.

Responding to the Council’s Report, Prime Minister Malcolm Turnbull, Attorney-General George Brandis and Indigenous Affairs Minister Nigel Scullion announced that the Turnbull Government had “carefully considered the Referendum Council’s call to amend the Constitution to provide for a national Indigenous representative assembly to constitute a “Voice to Parliament.”

However, “The government does not believe such an addition to our national representative institutions is either desirable or capable of winning acceptance in a referendum.”

Clearly, after Uluru, the Indigenous People had become much more interested in a Makarrata – a treaty – than in any constitutional change. As far as the ‘Voice’, mentioned in the Statement and supported by the Council, the Indigenous representatives had unequivocally indicated that all they wanted to achieve through that was in recognition of “the right to be consulted on legislation and policies that relate to Aboriginal and Torres Strait Islander peoples.” The intention seems eminently reasonable, but the government thought otherwise.

In the statement issued on 26 October, the Turnbull government declaimed that: “Our democracy is built on the foundation of all Australian citizens having equal civic rights – all being able to vote for, stand for and serve in either of the two chambers of our national parliament – the House of Representatives and the Senate.” And that was bumptious enough.

Unfortunately, the government extended itself to embrace Mr Joyce, the Deputy Prime Minister’s opinion that “an Indigenous chamber [which] is a “self defeating proposition” simply “won’t fly” with the public. The government statement specified, perhaps more elegantly but not less deviously: “A constitutionally enshrined additional representative assembly which only Indigenous Australians could vote for or serve in is inconsistent with this fundamental principle.” Furthermore, “It would inevitably become seen as a third chamber of parliament. The Referendum Council noted the concerns that the proposed body would have insufficient power if its constitutional function was advisory only.”

The government complained that “The Referendum Council provided no guidance as to how this new representative assembly would be elected or how the diversity of Indigenous circumstance and experience could be fairly or democratically represented.

Moreover, the Government does not believe such a radical change to our constitution’s representative institutions has any realistic prospect of being supported by a majority of Australians in a majority of States.

The Government believes that any proposal for constitutional change should conform to the principles laid down by the 2012 Expert Panel, namely that any proposal should “be capable of being supported by an overwhelming majority of Australians from across the political and social spectrums.”

The government lamented that “The Referendum Council said that the Voice to Parliament was a “take it or leave it” proposal for the Parliament and the Australian people. We do not agree.

The Council’s proposal for an Indigenous representative assembly, or Voice, is new to the discussion about constitutional change, and dismissed the extensive and valuable work done over the past decade – largely with bipartisan support.

We are confident that we can build on that work and develop Constitutional amendments that will unite our nation rather than establish a new national representative assembly open to some Australians only.

The challenge remains to find a constitutional amendment that will succeed, and which does not undermine the universal principles of unity, equality and “one person one vote.”

We have listened to the arguments put forward by proponents of the Voice, and both understand and recognise the desire for Aboriginal and Torres Strait Islander Australians to have a greater say in their own affairs.

We acknowledge the values and the aspirations which lie at the heart of the Uluru Statement. People who ask for a voice feel voiceless or feel like they’re not being heard. We remain committed to finding effective ways to develop stronger local voices and empowerment of local people.

Our goal should be to see more Aboriginal and Torres Strait Islander Australians serving in the House and the Senate – members of a Parliament which is elected by all Australians.

The Government has written in response to Mr Shorten’s call for a Joint Select Committee, and have asked that the committee considers the recommendations of the existing bodies of work developed by the Expert Panel (2012), the Joint Select Committee on Recognition of Aboriginal and Torres Strait Islander Peoples (2015) and the Referendum Council report (2017).

The Coalition continues to aim to work in a bipartisan way to support constitutional recognition.” (Turnbull government formally rejects proposal for Indigenous voice to Parliament, 26 October 2017, SBS). (See also: Oct 27 2017, NACCHO Aboriginal Health and the Referendum #Uluru statement: PM rejects ‘#Indigenous ‘voice’ to parliament).

Such ‘vision’ could be tolerated, if not expected, from a person such as Senator the Hon Nigel Scullion, self-described as a ‘professional fisherman’ and corporation man.

But what should one say of the Hon. Malcolm Turnbull, of Vaucluse Public School, St. Ives Preparatory School, Sydney Grammar School, University of Sydney, Brasenose College, Oxford, Barrister, General counsel Australian Consolidated Press, Investment banker (Goldman Sachs (1997-2001); Whitlam Turnbull & Co Ltd) and lately, by recent self-description “a highly transactional businessman like you [Trump]… ”?

And who could disregard the fact that Senator the Hon George Brandis QC, Attorney-General, is BA (Hons), LLB (Hons) (Qld), BCL (Oxon), and has been a Barrister since 1985?

The government desired consideration to return now to work done over the past decade, “largely with bipartisan support.”

The government’s position attracted immediate reaction from Senator Patrick Dodson, Labor’s shadow assistant minister for Indigenous Affairs, one of several Indigenous members of federal Parliament, who described the government decision as “a real kick in the guts for the Referendum Council.”

While rejecting the proposal of the ‘Voice’, the Prime Minister said that he would establish a joint parliamentary committee with the Opposition to examine alternative proposals for constitutional change to benefit Indigenous People.

The Referendum Council’s Mr Noel Pearson described the decision as devastating for the Indigenous community.

“I think Malcolm Turnbull has broken the First Nations hearts of this country, expressed in the Uluru Statement from the Heart,” he said. … “He accused John Howard of doing that in 1999 [over the referendum for a republic] and he has done the same thing in relation to recognition of Indigenous Australians.”

Ms Josie Crawshaw, a child protection advocate and a delegate at Uluru, said that she was deeply disappointed. “While our children are languishing in the jails and our communities are poverty-stricken, they’ve just wasted 10 years of a conversation, and tens of millions of dollars, to shelve this,” she said.

Mr Rod Little, co-chairman of the National Congress of Australia’s First Peoples, said: “Aboriginal and Torres Strait Islander people have been let down once again.” (Indigenous advisory body rejected by PM in ‘kick in the guts’ for advocates, 26 October 2017, The A.B.C.).

Mr Pearson later told the A.B.C. that “There’s no reconciliation and recognition under this Prime Minister.” Even though “There could’ve been a way to say ‘no’ to this without all of the egregious dog-whistling that is present in the PM’s press release.” … “The reality is that after today, we’ll need a new Prime Minister. Indigenous recognition will need a new PM if it’s ever to come to fruition.” (‘PM has broken our hearts’: Noel Pearson, 26 October 2017, RN Drive, The A.B.C.). He went on: “The Prime Minister and his cabinet have arrogated to themselves the entire judgement of this fundamental issue of how do we recognise Indigenous Australians.” … “Why not just put it to the Australian people, as we are putting to a plebiscite the question about same-sex marriage at this very moment?”

In a communiqué issued on 26 October 2017 the Uluru Statement Working Group declared itself clearly disappointed about the Turnbull Cabinet rejection of ‘the Referendum Council’s blueprint’.

It said that the Prime Minister already understood that ‘a minimalist approach’ will not satisfy many Indigenous and Torres Strait Islander People.

“Our aspirations are high, but the Prime Minister appears to believe that the Australian people will not support those aspirations. This is a very unfortunate view for the Prime Minister to hold, particularly when he has the highest platform to inspire all Australians to achieve great things for this country and for all its people.” (Turnbull’s Rejection Of Indigenous Consensus Met With Anger, Resilience, 27 October 2017, Pedestrian TV).

It was left to the Indigenous Affairs Minister, Senator Scullion to defend the Coalition’s rejection of the ‘Voice’ key proposal in the Uluru Statement, saying that the government was “surprised” by the Referendum Council’s report and suggested non-Indigenous people should have been consulted.

In a heated Senate estimates hearing, Senator Scullion said that the government had made a judgment call that the proposal of a constitutionally enshrined Indigenous voice to parliament “would not fly” and would potentially set back the reconciliation cause.

“We have given our view that reconciliation … will go back a step if we just recklessly decide to test this option on the Australian people when our judgment is that it would fail,” he said.

Senator Scullion said that the government did not have any evidence and had not done any polling to support its decision, saying: “It’s not always about evidence, it is about the government’s judgment … if this notion of a voice was put to a referendum it would certainly fail and that is the government’s judgment.”

He indicated that the government was broadly supportive of other proposals put forward at Uluru, such as the push for a Makarrata commission and ‘some form of settlements.’

He also said that the Council, which was established to report to Messrs Turnbull and Shorten on the outcome of a series of national consultations on options for recognising Indigenous and Torres Strait Islander Peoples in the Constitution, “had failed to meet its terms of reference because it only recommended one option.”

Senator Scullion complained that the final report of the Council, which was handed down on 30 June, “departed severely” from the committee’s terms of reference. “They significantly went off the rails in terms of what we expected,” he said. “Certainly my expectation was a bringing together of all the reports and some words to put to the Australian people.”

Senator Scullion also suggested that the Council should have consulted with non-Indigenous Australians, not just Indigenous and Torres Strait Islander Peoples, to ensure the proposal would have the support of all Australians.

“The task for the Referendum Council was to talk to Australia, to consult with Australia, and I think the Referendum Council’s view was that was speaking to Aboriginal and Torres Strait Islander people,” he said. “Speaking to 3% of the population when you are actually trying to deal with a national issue was part of the fail.”

He added: “There was very little work down with the mainstream, non-Indigenous part of the community. I’m not arguing whether it should or shouldn’t have been.” (Nigel Scullion says Indigenous voice to parliament ‘would not fly’ with voters, 27 October 2017, The Guardian).

Summarising, for the record, the Referendum Council held 12 regional dialogues, each attended by more than 200 Indigenous and Torres Strait Islander Peoples, before the national convention of about 300 people at Uluru in May. It reported regularly to government throughout that process.

The gathering at Uluru produced a Statement which rejected ‘symbolic’ recognition of the First Peoples in the form of a declaration in the Constitution, in favour of a constitutionally enshrined representative body called the Indigenous ‘voice to Parliament’, and a Makarrata commission to negotiate a treaty or treaties between Indigenous and Torres Strait Islander Peoples and the Australian Government and to work towards a truthful account of Australian history.

“You’ve asked the Aboriginal people of Australia what they wanted, they told you they wanted a voice, and you reject it,” remarked Senator Patrick Dodson. “What a waste of time that is.”

Senator Dodson said that the request for a ‘voice to Parliament’ was about recognising both the “appalling history” of how Indigenous and Torres Strait Islander Peoples have been treated in Australia, and recognising the unique place of First Nations peoples in Australian society.

“This [rejecting the ‘voice to Parliament’] seems to say we deny this history, we deny this uniqueness, and really you have to meet this bipartisan test, and some other test, before we contemplate what your wishes are,” Dodson said. “And when you tell us what your wishes are, we’re not going to do that.”

Ms Gayle Anderson from the Department of Prime Minister and Cabinet objected that the Council did not meet the requirement to present “options for a referendum proposal, steps for finalising a proposal, and possible timing for a referendum.” Ms. Anderson pointed out that such wording suggested multiple options for reform would be presented.

Senator Scullion said that he expected that the Council would build on the recommendations of the 2012 Expert Panel on Indigenous recognition and the 2015 Joint Parliamentary Committee on Indigenous recognition. And he added: “We were all very surprised when all of that was rejected and something outside of the terms of reference occurred.”

How would one spell ‘bureaucratic fussiness’ in such a way that Senator Scullion could understand?

Both those reports proposed, among other reforms, a statement formally recognising Indigenous and Torres Strait Islander Peoples in the Constitution. That model was rejected in a statement from about 300 delegates at Uluru. (Uluru: Nigel Scullion says Indigenous voice to parliament ‘would not fly’ with voters, 27 October 2017, The Guardian).

Of course, the proposed Indigenous ‘voice to Parliament’ could never be regarded as radical as the government portrayed it. No person of good faith could agree with the government.

The Prime Minister, the Attorney-General and the Minister for Indigenous Affairs, speaking on behalf of the people of Australia, have rejected a historic opportunity to reverse a constitutional system which is biased against the First Nations people surviving in Australia.

The government statement said that the cabinet had “carefully considered” the proposal before rejecting it. There is very little evidence, and by that one does not even mean forensic evidence, that such consideration took place. But if that happened it is clear that the government misunderstood or misrepresented, deliberately or otherwise, the essence of the proposal.

Two lawyers of some distinction, however earned, chose to brand the proposal as a “radical change.”

It is not, or at least no more than many options submitted in recent years, including the recommendation for a racial non-discrimination clause to be inserted in the Constitution. Moreover, the proposal is more in line with Australian view of a ‘constitutional system’, in which Parliament has primary responsibility for protecting rights. Indeed, constitutional specialists such as Laureate Emerita Professor of public law at Melbourne Law School Cheryl Saunders have argued that the recommendations are “modest” in constitutional terms. (Australia’s First Nations seek to be heard: A seminal process, outcomes pending, 16 June 2017, ConstitutionNet).

The government rejected the proposal; it said, partly because of a lack of detail about how the body might be elected – a sophistic argument if ever there was one!

Still, it did not worry about misrepresenting the agreed features of the proposed body. It then passed on to worry that the ‘Voice’ would “inevitably become [to be] seen as a third chamber of parliament,” and this would threaten nothing less than “the universal principles of unity, equality and “one person one vote.”

Neither of those claims is true.

The plan is not to set up a “third chamber of parliament” in which new legislation is introduced, publicly debated, and potentially voted down. It is far more modest: to arrange for a representative body which would ensure Indigenous and Torres Strait Islander views are sought on proposed legislation which would affect their interests. Once this is understood, it is clear that the proposal does not undermine the equality of Australian constitutional system or the notion of “one vote, one value.”

Continued Friday with: A dialogue with the deaf (Part 2)

Previous instalment: The dangers of appeasement (Part 3)

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Dr. Venturino Giorgio (George) Venturini, formerly an avvocato at the Court of Appeal of Bologna, devoted some sixty years to study, practice, teach, write and administer law at different places in four continents.

 

 

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