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 week: Kosmische Musik

 

 

 

 

 

New Labor?

At the time of writing, ballot papers in the recent Australian Federal Election are still being counted. Although it is clear that the Australian Labor Party (ALP) has secured more seats in the House of Representatives than any other party, and its leader, Anthony Albanese has already been sworn in as the new Prime Minister, the ALP is yet to establish an overall Parliamentary majority – although it is highly likely they will.

While the final results are still to be tallied, it’s fair to say that this Election has been like no other, and the ALP will need to find a new style of Government, given the following facts:

  • Albanese is only the fourth Labor leader since WWII to lead the ALP to Government from Opposition – given the fixed three-year terms of Australian Parliaments, this is an achievement in itself;
  • The ALP secured less than 33% of the national primary vote (compared to the outgoing LNP Government’s 36%); this means nearly one-third of first preference votes were divided between the Greens, Independents, and other minor parties, and in theory breaks the two-party stranglehold on Federal politics;
  • The two-party preferred tally shows a remarkable similarity to the Brexit Vote: ALP 51.7% vs LNP 48.3% (Brexit: Leave 51.9% vs Remain 48.1%) – which might suggest a less than an overwhelming mandate for the ALP;
  • Candidates for the so-called “Teal Independents” secured more new seats than perhaps even they expected, and will form the largest group on the expanded cross-bench;
  • The Greens won three new seats, all in Queensland, which is surprising given the party’s stand on the mining, coal and gas industries;
  • Although Katter’s Australian Party retained its solitary member in the House of Representatives, neither of the other Queensland-based, right-wing parties (One Nation and the United Australia Party) picked up any lower house seats.

These election results have also highlighted (even exacerbated?) the differences that exist between regional, metropolitan, and suburban areas (both within each State and nationally) that represent significant fault lines across the Federal electorate.

Even if the ALP manages to secure a majority in the House of Representatives, the incoming Prime Minister has acknowledged the need to engage more with the cross-bench than previous administrations – in particular on climate policy and the establishment of a Federal independent commission against corruption. (And in the Senate, the ALP will likely be reliant upon the Greens to pass legislation.)

On climate policy, the main debate is on achieving lower targets for carbon emissions, how to do it, how soon, and at what cost. The biggest challenge will be on transitioning the mining, coal and gas industries (especially in Queensland and Western Australia), and on tackling the heavy polluters (in particular, energy generation, construction and agriculture). Given that both Queensland and Western Australia are under Labor Governments, and that these industries are heavily unionized compared to most other sectors of the economy, perhaps the Prime Minister will find it comparatively easy to sell his Government’s policies – but bringing the rest of the population with him will be key, and there needs to be a clearer path to decarbonizing the economy, including incentives for change.

Regarding a Federal anti-corruption body, the challenge will be to draw up practical and consistent terms of reference (especially given that such bodies already exist in some form or other at State level). For example, in addition to elected representatives and civil servants, should a new Commission have oversight of political parties, charities, unions, non-for-profits, industry associations, professional sporting codes, non-government bodies and anyone else that receives any sort of public funding? And what about whistle-blower protections and the public’s right to submit a complaint or other matter for investigation? How will it deal with freedom of information requests that appear to be denied on political grounds, or manage the transaction of investigations that may involve multiple parties? And should such a body have oversight of truth in political advertising or deliberate misinformation campaigns by those running for public office?

A glaring omission from the Federal election campaign was any meaningful debate on the need for structural economic reforms. Many of the published policies were heavy on how much funding would be allocated to favoured industries and pet projects, but they were very light on evaluating expected outcomes or measuring the quality of results. The only financial topics to get regularly aired were wage growth, inflation, interest rates, and incentives for first-time home buyers – all of which may be important, but they are largely “more of the same” that we have seen for the past 20 years of tax-based tinkering. Not since the introduction of GST (sales tax) in 2000 have we seen any significant policy implementation, and certainly nothing like the major economic reforms introduced by the Hawke/Keating administration. To be fair to the Greens, they did advocate new taxes to fund some of their carbon-related policies (including nationalising part of the renewable energy sector) but I don’t recall seeing a specific cost analysis or balance sheet on how they would achieve their goals. There are also tensions emerging between the need to bolster wage growth (off the back of improved productivity, which hopefully includes removing archaic restrictive practices and encouraging further competition?) and the need to address growing skills shortage (to be partly offset by increased immigration, without risking wage deflation?). Any discussion of the economy must also recognise the realities of the changing work environment, including new technology, remote working, casual employment and the need to encourage innovation and sustain the small business and start-up ecosystem.

Finally, if the Prime Minister is going to be successful in selling his vision of “New Labor” (my term) then he will need to:

  • ensure that the ALP does not again disintegrate into factional party warfare and rolling incumbent leaders that plagued the previous Labor administration (and which was adopted with equal gusto by the outgoing Coalition);
  • steer a renewed path to economic modernisation begun by his predecessors in the 1980s and 1990s;
  • embrace new technology and change the way public sector IT procurement is conducted;
  • acknowledge that the Government (featuring, as ever, so many career politicians who lack direct experience of working in industry or running commercial businesses) doesn’t know all the answers – but they know how and where to find them;

And while it’s not the Prime Minister’s job to actually “hold the hose”, he does need to make sure those who do are competent to do so, and that he and his Government will hold themselves, their appointees and their representatives directly accountable to the electorate.

Next week: Renzo Piano & the Centro Botín

 

 

Free speech up for sale

When I was planning to post this article a couple of weeks ago, Elon Musk’s bid to buy Twitter and take it into private ownership was looking unlikely to succeed. Musk had just declined to take up the offer of a seat on the Twitter board, following which the board adopted a poison-pill defence against a hostile takeover. And just as I was about to go to press at my usual time, the news broke that the original bid had now been accepted by the board, so I hit the pause button instead and waited a day to see what the public reaction was. What a difference 72 hours (and US$44bn) can make… It seems “free speech” does indeed come with a price.

Of course, the Twitter transaction is still subject to shareholder approval and regulatory clearance, as well as confirmation of the funding structure, since Musk is having to raise about half the stated purchase from banks.

Musk’s stated objective in acquiring Twitter was highlighted in a press release put out by the company:

“Free speech is the bedrock of a functioning democracy, and Twitter is the digital town square where matters vital to the future of humanity are debated,” said Mr. Musk. “I also want to make Twitter better than ever by enhancing the product with new features, making the algorithms open source to increase trust, defeating the spam bots, and authenticating all humans. Twitter has tremendous potential – I look forward to working with the company and the community of users to unlock it.”

This latest development in Musk’s apparent love/hate relationship with Twitter is bound to further divide existing users as to the billionaire’s intentions, as well as raise concerns about the broader implications for free speech. Musk himself has encouraged his “worst critics” to stay with the platform. Meanwhile, founder and former CEO, Jack Dorsey has renewed his love of Twitter, despite only recently stepping away from the top job to spend more time on his other interests.

Personally, I’m not overly concerned that a platform such as Twitter is in private hands or under single ownership (subject, of course, to anti-trust rules, etc.). Far from creating an entrenched monopoly, it may actually encourage more competition by those who decide to opt out of Twitter. What I am less comfortable with is the notion that Twitter somehow acts as an exemplar of free speech, and as such, is a bastion of democracy.

On the positive side, we will be able to judge the veracity of Musk’s objectives against his actual deeds. For example, will Twitter actually introduce an edit button, make its algorithms open-source, exorcise the spam bots, verify users, and reduce/remove the platform’s reliance upon advertising?

On the negative side, what credible stance will Twitter now take on “free speech”, short of allowing an “anything goes” policy? If Musk is sincere that Twitter will be a platform for debating “matters vital to the future of humanity”, he may need to modify what he means by public discourse. Personal slanging matches with fellow-billionaires (and those less-able to defend themselves) do not make for an edifying public debating forum. Musk’s own disclosures about Twitter and his other business interests will also come under increased scrutiny. We know from past experience that Elon’s Tweets can move markets, and for this alone he should be aware of the responsibility that comes with ownership of the platform.

We have long understood that free speech is not the same as an unfettered right to say what you like in public – there are limits to freedom of expression, including accountability for the consequences of our words and actions, especially where they can cause harm. The broader challenges we face are:

  • technology outpacing regulation, when it comes to social media
  • defining what it means to “cause offence”
  • increased attacks on “mainstream media” and threats to freedom of the press

1. Just as the printing press, telegraphy, telephony, broadcasting and the internet each resulted in legislative changes, social media has continued to test the boundaries of regulation under which its predecessors now operate. Hitherto, much of the regulation that applies to social and digital media relates to privacy and data protection, as well as the existing law of defamation. But the latter varies considerably by jurisdiction, and by access to redress, and availability of remedies. Social media platforms have resisted attempts to treat them as traditional media (newspapers and broadcasters, which are subject to licensing and/or industry codes of practice) or treat them as publishers (and therefore responsible for content published on their platforms). (Then there is the question of how some social media platforms manage their tax affairs in the countries where they derive their revenue.)

The Australian government is attempting to challenge social media companies in a couple of ways. The first has been to force these platforms to pay for third-party news content from which they directly and indirectly generate advertising income. The second aims to hold social media more accountable for defamatory content published on their platforms, and remove the protection of “anonymity”. However, the former might be seen as a (belated) reaction to changing business models, and largely acting in favour of incumbents; while the latter is a technical response to the complex law of defamation in the digital age.

2. The ability to be offended by what we see or hear on social media is now at such a low bar as to be almost meaningless. During previous battles over censorship in print, on stage or on screen, the argument could be made that, “if you don’t like something you aren’t being forced to watch it”, so maybe you are deliberately going in search of content just to find it offensive. The problem is, social media by its very nature is more pervasive and, fed by hidden algorithms, is actually more invasive than traditional print and broadcast media. Even as a casual, passive or innocent user, you cannot avoid seeing something that may “offend” you. Economic and technical barriers to entry are likewise so low, that anyone and everyone can have their say on social media.

Leaving aside defamation laws, the concept of “hate speech” is being used to target content which is designed to advocate violence, or can be reasonably deemed or expected to have provoked violence or the threat of harm (personal, social or economic). I have problems with how we define hate speech in the current environment of public commentary and social media platforms, since the causal link between intent and consequence is not always that easy to establish.

However, I think we can agree that the use of content to vilify others simply based on their race, gender, sexuality, ethnicity, economic status, political affiliation or religious identity cannot be defended on the grounds of “free speech”, “fair comment” or “personal belief”. Yet how do we discourage such diatribes without accusations of censorship or authoritarianism, and how do we establish workable remedies to curtail the harmful effects of “hate speech” without infringing our civil liberties?

Overall, there is a need to establish the author’s intent (their purpose as well as any justification), plus apply a “reasonable person” standard, one that does not simply affirm confirmation bias of one sector of society against another. We must recognise that hiding behind our personal ideology cannot be an acceptable defence against facing the consequences of our actions.

3. I think it’s problematic that large sections of the traditional media have hardly covered themselves in glory when it comes to their ethical standards, and their willingness to misuse their public platforms, economic power and political influence to undertake nefarious behaviour and/or deny any responsibility for their actions. Think of the UK’s phone hacking scandals, which resulted in one press baron being deemed “unfit to run a company”, as well as leading to the closure of a major newspaper.

That said, it hardly justifies the attempts by some governments, populist leaders and authoritarian regimes to continuously undermine the integrity of the fourth estate. It certainly doesn’t warrant the prosecution and persecution of journalists who are simply trying to do their job, nor attacks and bans on the media unless they “tow the party line”.

Which brings me back to Twitter, and its responsibility in helping to preserve free speech, while preventing its platform being hijacked for the purposes of vilification and incitement to cause harm. If its new owner is serious about furthering public debate and mature discourse, then here are a few other enhancements he might want to consider:

  • in addition to an edit button, a “cooling off” period whereby users are given the opportunity to reconsider a like, a post or a retweet, based on user feedback or community interaction – after which time, they might be deemed responsible for the content as if they were the original author (potentially a way to mitigate “pile-ons”)
  • signing up to a recognised industry code of ethics, including a victim’s formal right of reply, access to mediation, and enforcement procedures and penalties against perpetrators who continually cross the line into vilification, or engage in content that explicitly or implicitly advocates violence or harm
  • a more robust fact-checking process and a policy of “truth in advertising” when it comes to claims or accusations made by or on behalf of politicians, political parties, or those seeking elected office
  • clearer delineation between content which is mere opinion, content which is in the nature of a public service (e.g., emergencies and natural disasters), content which is deemed part of a company’s public disclosure obligations, content which is advertorial, content which is on behalf of a political party or candidate, and content which is purely for entertainment purposes only (removing the bots may not be enough)
  • consideration of establishing an independent editorial board that can also advocate on behalf of alleged victims of vilification, and act as the initial arbiter of “public interest” matters (such as privacy, data protection, whistle-blowers etc.)

Finally, if Twitter is going to remove/reduce advertising, what will the commercial model look like?

Next week: The Crypto Conversation

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?