Finding a Voice

Australia’s Prime Minister recently announced his Government’s plans to hold a national referendum on the “Indigenous Voice to Parliament“. The Voice is a key outcome from the Uluru Statement from the Heart, and the path towards Treaty and Truth. It will require amendments to the Australian Constitution. The inevitable debate about the detail, purpose and scope to be enshrined in the Voice has now been heightened by the death of Queen Elizabeth II, and related issues of Australia’s pre- and post-colonial history, the experience of Federation and the fate of the Republican movement.

NAIDOC guide to Indigenous place names in Australia (image sourced from SBS)

One of the first comments in the wake of the Prime Minister’s announcement came from the Green Party, who indicated that their support for the Voice would be conditional on there being a Treaty first. Indeed, Greens Senator Lidia Thorpe called the proposed referendum “a waste of money”, indicating that she wanted to see a Treaty with Indigenous Australians before any talk of a Republic. Since the Queen’s death, it seems the Senator has changed her mind, and is now calling for both a Treaty and a Republic. But the Prime Minister has determined that the first order of business for his Government is the Voice, and that the Republican debate is not for his first term in office.

The question to be presented in the Referendum will be:

“Do you support an alteration to the Constitution that establishes an Aboriginal and Torres Strait Islander Voice?”

And the proposed additions to the Constitution would read something like this:

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.

While refusing to be drawn on the precise details of the Voice, the Prime Minister has defined what it is NOT going to be: “Not a third chamber, not a rolling veto, not a blank cheque.” Meanwhile, two bodies have been appointed to prepare for the Referendum proposal and implementation: the Referendum Working Group, and the Referendum Engagement Group, whose terms of reference are not entirely clear – and Senator Thorpe complained that the appointees “did not represent First Nations voices”.

Given the history of Referendums in Australia (most notably the failure of the Republican Movement to secure a “Yes” vote in 1999), it’s understandable that people are either wary about the form of the question and/or the Constitutional amendments, or are concerned about the apparent lack of detail that the Government has so far provided on the remit of the Voice. There is a possibility that the electorate votes “Yes” in the Referendum, but that agreement cannot be reached on the changes to the Constitution, or the structure of the Voice. So it’s understandable that some people are seeking more detail, or at least more clarity.

Whatever the sequence of events (Voice, Treaty, Republic?), it’s going to be a complicated process. For example, putting the Republic before the Voice may mean that the latter becomes redundant, assuming the Republican Constitution embeds principles such as the United Nations Declaration on the Rights of Indigenous Peoples. And Treaty before Republic would mean that the agreement(s) would be between the First Nations people and the Australian Constitutional Monarchy, whose Head of State is now King Charles III.

Perhaps that is the point – the formal process of healing, reconciliation and reparation cannot be meaningfully done without some involvement by the British Crown, in whose name Indigenous lands were appropriated in 1788. But does that potentially “absolve” Australia’s post-Federation Governments and Administrations from any responsibility for the act of British colonisation? Since Federation in 1901, Australia has had ample opportunity to make amends. It is no longer possible to suggest that any change to the Australian Constitution would require Royal Assent by the King or Queen in person – the purely ceremonial role of the British Monarchy in respect to Australia’s domestic affairs has always been predicated on the advice from both the Governor General (who serves as the Monarch’s local representative, and who gives Royal Assent to Australian Acts of Parliament), and Australia’s own government ministers and civil servants. In any event, it’s long been understood that the Crown would not prevent Australia becoming a Republic; in effect, the Crown could not intervene in any Constitutional amendment. Such a change is entirely a matter for the Australian Parliament.

The Westminster Act of 1931 confirmed that Australia is an independent state able to form its own foreign policy and defence free from British control; and the Australia Act 1986 formally severed all remaining legal ties between Australia and the United Kingdom except for the Monarchy. So a Treaty with Indigenous peoples could have been possible since 1901 when the Commonwealth of Australia Constitution Act came into force, heralding Federation. (Interestingly, King Charles III has had to be proclaimed by the Federal Government, and by each State – which might suggest the need for multiple Treaties?)

Another argument against embodying the Voice within the framework of the current Australian Constitutional Monarchy is because it would appear to “ratify” colonisation, and thereby imply Sovereignty had been granted (retrospectively?) to the Crown, which would therefore negate the need for Treaty. Indeed, the whole point of Treaty is to re-assert that Indigenous Sovereignty was never ceded, and that unlike other British colonies such as Canada and New Zealand, the British Crown has never attempted to negotiate any form of direct agreement with the Indigenous Nations of Australia.

Alternatively, Associate Professor Hannah McGlade has stated that a national Treaty needs a national body to negotiate (hence a key purpose of the Voice).  Further, she argues that Aboriginal Sovereignty relates to the “right to shape the national dialogue” on issues of primary concern to the Indigenous population. While not quite equating to full self-determination, it does provide a persuasive argument in favour of establishing the Voice to Parliament.

Finally, some other factors to consider as we move through this multi-faceted debate on Treaty, the Republic, and defining Australia’s post-colonial, post-Federation and post-Monarchy identity:

1. A Republic is no guarantee of getting Treaty right – indeed, look at the number of republics that have ridden rough-shod over their own indigenous and minority peoples – oppression and dictatorship is not the preserve of monarchs and emperors.

2. There is the question of how Crown land in Australia will be resolved, both in relation to Treaty, and the Republic. This would include the commercial arrangements for agriculture, mining and tourism, as well as land development and construction.

3. Inconsistencies in how Indigenous people are acknowledged at public events, meetings and in other similar settings. Here in Victoria, we are very used to some statement of recognition towards Indigenous nations and the traditional custodians of the land, along with their elders past, present and emerging. On my recent trip the Kimberley, I was surprised that no such formal statements were made when visiting culturally significant landmarks, usually under the direction of official tour guides, including National Parks. Not that there was an absence of awareness, knowledge or public signage, but I had expected there might have been a more vocal expression from some of our hosts.

4. Despite the need for a cohesive approach to the Voice and Treaty, it would be a mistake to view the Indigenous populations and their respective Nations as an homogenous entity. Even within Indigenous communities, as in any society, there are differences and inconsistencies. So there will be different demands placed on those charged with navigating the Voice, and negotiating Treaty. But a speedy outcome should not preclude the establishment of a solid consensus. After all, what’s 240 years compared to 50,000?

Next time: TBA

 

 

 

 

 

Doctrine vs Doctrinaire

The recent “debate” surrounding the Federal Government’s proposed Religious Discrimination Bill was a staggering example of political overreach combined with poor policy management. It was also a stark reminder that although we live in a secular, pluralistic and liberal democracy, some politicians cannot refrain from bringing religion into the Parliament and on to the Statute Books, even where there was neither a strong mandate nor an overbearing need to change the existing law in the way the Government attempted.

As far as I can tell, the Bill was originally intended to give people of faith additional protection against discrimination on the basis of their religion. But when linked to related Sex Discrimination legislation, it would likely have given religious institutions some degree of protection against claims of discrimination in the areas of gender and sexual orientation, particularly in respect of children’s access to education and in relation to employment by faith-based organisations.

If that wasn’t worrying enough, the Bill was underpinned by a controversial “statements of belief” provision. As drafted, this would have granted a person immunity from prosecution for the consequences of their words or actions if such deeds were based on a “genuine” religious belief. I find this particularly troublesome, not because I think people should be vulnerable to persecution for their faith; rather, it sets a dangerous precedent for what religiously-motivated people may feel emboldened to do in the name of their particular faith, especially where their actions cause actual or genuine apprehension of harm (the “God told me to do it” defence).

The shift from doctrine to doctrinaire is all too palpable. It’s one thing to believe in Transubstination, yet another to use a public platform (including social media) to proclaim that “gays will burn in hell”  unless they renounce their ways. The problem with a very literal application of ancient religious texts (most of which are open to wide and sometimes contradictory interpretation) is that this approach does not allow for any concept of progress (scientific, cultural, societal). It also gives rise to extreme forms of fundamentalism, such as banning music or refusing to ordain women priests. History has also shown us that people purportedly adhering to the same religion frequently disagree, leading to turbulent schisms, violent sectarianism and untold bloodshed. Then there are the religious death cults that kill themselves and their children for the sake of achieving their own “beliefs” (in which their offspring surely couldn’t have been compliant or willing participants).

As Luke Beck wrote recently in The Conversation, “There is broad agreement a person should not be discriminated against on the basis of their faith or lack of faith. However, the extent to which religion should be a licence to discriminate against others remains enormously contentious.”

This putative “license” may be an unintended consequence of the Bill, but the implications, should it be enacted, could be far-reaching: archeologists being sacked for saying the earth is older than 6,000 years; anthropologists for saying that the first humans were living 2 million years ago; astronomers for saying the earth orbits around the sun…. And that’s just in the area of science.

I understand that a person of faith may have a deep-seated belief against birth control, or pre-marital sex, or alcohol, or tattoos, or marriage equality – but that doesn’t mean their faith should impose their choices on the rest of the population. (Just as people of faith aren’t being forced to consume booze or get inked against their will.) As it is, religious institutions enjoy significant tax benefits, public funding and legal exemptions, and this current “debate” is bringing some of these discrepancies into sharp focus.

The last time I looked, here in Australia we aren’t living in a theocracy, people of faith aren’t being fired from their jobs because of their religion, and secularists, agnostics and atheists aren’t calling for places of worship to be demolished. What the latter do expect is people of faith not to use their beliefs either as a pretext to justify any form of discriminatory, pejorative or harmful acts or statements, or as a protection against being accountable for their words and deeds.

Next week: When is a print not a print?

Federation. Is. Broken. Surely?

Why don’t we celebrate the Australian Federation? Logically, it would make more sense to mark the formation of the Commonwealth of Australia (January 1, 1901), rather than the highly contentious Australia Day (January 26). The former offers the notion of nationhood and a sense of progress; the latter is tainted with invasion and colonization.

Part of the problem is that we don’t really believe in the Federation (or more likely, we don’t understand or know enough about it). Queensland and New South Wales were initially cold to lukewarm about joining the Federation, and Western Australia only came around once the Constitution Act was passed in 1900. (There’s even a argument to suggest that New Zealand may have joined the Federation before or instead of Western Australia, but I’ll leave that to the historians.)

More significant is the fact that the past two years have revealed considerable cracks in the Federation. States have been taking very different approaches to the current pandemic, with both Western Australia and Queensland at times acting as if they had already seceded. We’ve seen huge inconsistencies in how each State and Territory has responded to Covid – there was little to no national consensus on defining “hot spots”, “red zones”, “clusters”, “complex cases”, “mystery cases” or “close contact”. The respective public health measures and administrative responses were also very different, leading to confusion, frustration and anger over external and internal border controls, hotel quarantine, home isolation, track’n’trace, density limits, social distancing and vaccine roll-out. Overlay that with cack-handed management by the Commonwealth itself, and it’s easy to see why many people feel no love for Federation.

The former Premier of NSW let the cat out of the bag when she referred to “our New South Wales citizens”. Last time I looked, Australian citizenship is conferred at the Federal level, not by individual States or Territories. This Freudian slip just confirms the many fault lines that exist as between the Commonwealth and the States, and as between the States themselves. About the only thing that unites Australians is when a national sports team is competing at international level…

In fact, there are many areas of public policy, administration and infrastructure where the States and Territories adopt different standards and models – for example, we don’t yet have a fully integrated national energy grid, daylight savings results in five different time zones during summer (as opposed to the three during winter), and there are differences in parliamentary structures (bicameral vs unicameral) and election cycles.

The issue of Federation is also fraught from a financial and budgetary perspective. States and Territories have limited options for raising their own revenue, namely payroll tax, land tax, stamp duty and licenses. While they can generate revenue from commercial ventures such as public-private infrastructure projects (and from mining and resources royalties), the bulk of their funding comes from the distribution of Federal income tax and GST (sales tax). (Or they borrow in the public debt markets.) And of course, there is always some aggro on these allocations at COAG meetings (now known as National Cabinet….).

It might also be the case that just as we have too many professional football codes (none of which are truly “national”), we have too many layers of government for a population of just 25 million people (Federal, State, Local). Given that Local Government is not actually provided for in the Constitution, and given the antagonism between States, perhaps there is a case to be made for change. Most people live within a few coastal conurbations. Moreover, many people identify closely with their city, region or rural locality, even more so than their State. Think of border twin towns such as Albury-Wodonga on the River Murray and Tweed Heads-Coolangata on the East Coast. So, why not abolish the States and Territories (as well as dismantling the current local government structure), and instead establish functional municipal, regional and rural governments that are more representative of their local communities, and which are charged with distributing resources and coordinating public services on behalf of the Commonwealth (especially in the areas of health, education, welfare and transport).

One thing is certain: Australia needs to sort out the Constitution before it can re-visit the idea of becoming a Republic. Apart from the issue of a Treaty for indigenous recognition and native title land rights (and resolving the anomaly that is Local Government), the structure of our political institutions also needs reforming. Having Federal elections every three years reinforces short-term policies. Consider also the negative impact the current state of the party political system has on the quality of policy debate and implementation. Look also at the wonky versions of proportional representation we have in the form of single transferable votes and dodgy preference deals, plus Senate party slates and “Captain’s picks”.

This all means that even though we may think we are voting for individual candidates to represent our interests in Parliament, we are in fact voting for party machines. Those party structures are rife with factional warfare, internecine disputes, branch stacking and shady backroom deals – hence, we don’t directly vote for the Prime Minister (who can be rolled by their own parties, as we know to our cost), and we can’t hold our constituent representatives accountable except at the next Federal election.

Even if we acknowledge that we are voting for a candidate based on their stated party allegiance, there is no guarantee that they will vote (or even stay) with that party, so we don’t get the representation we voted for. Add to the mix the continued problems with party donations, campaign funding, Parliamentary lobbying and electoral pork barrelling, and it’s no wonder we have given up on the party political system and have lost all respect for our elected representatives and their party leaders. Plus, the perpetual rent-seeking from entrenched vested interests (coupled with monopolistic institutions and cozy industry duopolies) means there is inertia in favour of this status quo.

The proposed model for a Republic seems to be predicated on having a President as the Head of State (to replace the British monarch and their local representative in the form of the Governor-General). Beyond that there seems to be little agreement on how the the President will be appointed, or what Constitutional and/or political powers will be vested in them. Recent proposals for a nomination and election process have been met with both support and opposition from former Prime Ministers. But until we define what role the President will perform, we can’t begin to think about the process for their elevation to the position.

For example, is the Presidency going to be a mere figurehead, with no decision-making authority apart from confirming the Will of Parliament? Should the President be directly elected via universal suffrage, under a single, popular vote and “first past the post” method (rather than via a fudged proportional representation model? If we have an electoral college system (as in the USA), who gets to participate, how are they appointed and how do they get to cast their votes? How long should the President hold office? Is the Office of President designed to “keep the bastards honest” in Parliament, or to intervene when the Parliamentary party system breaks down, or to sue the Commonwealth on behalf of affected citizens when the Constitution is breached? Will the President have any role in forming public policy, or negotiating international treaties? Or will the President be voted in under a popularity contest, and as a reward for past public service, kind of like a plebiscite for Australian of the Year?

Another thing may also be certain: the timing (and likelihood) of Australia becoming a Republic will depend on the politicians of the day, how they advocate for it, and the model they propose. Because wrongly or rightly, the form and substance of the Republic will be linked to the character of the Prime Minister who has to invoke the necessary Constitutional reforms, and the nature of the Government they lead to implement it. Which is a large reason why the Referendum on the Republic failed last time – the proposed model was not clear enough to the electorate, and Australian voters may have feared the outcome would result in a President who did not represent them, or who did not reflect the choice of the people. A bit like our recent run of Prime Ministers, and the revolving door at the Lodge!

Next week: Gratitude and the Great Recharge