2923

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Submission Number
2923
Participant
Margaret Gould
Submission date
Main Submission Automated Transcript

Submission in support of an Indigenous Voice protected in the constitution.

Aboriginal and Torres Strait Islander peoples are calling for a Voice to the Parliament,
enshrined in the constitution.
I support this call because the 1967 referendum gave the Parliament the responsibility to
enact laws for the benefit of Aboriginal and Torres Strait Islander people.
I believe the next step to be a mechanism whereby Aboriginal and Torres Strait Islander
people can speak directly to the parliament on matters pertaining to themselves and their
communities.
I am confident, that with national will, we can design a constitutional Voice for Aboriginal
and Torres Strait Islander people while concurrently upholding the universal principles of
our democracy.

Yours Respectfully
Margaret Gould

Referendums are both ordinary and extraordinary. Ordinary
because all constitutions have a method to allow for the future
alteration of the text, recognising that societies are not static and
change over time. But referendums can also be extraordinary
because they can lead to transformative, once-in-a-blue-moon
change. In constitutional law we sometimes call this “a
constitutional moment”. The last successful change to the
Australian Constitution, in 1977 – introducing a retirement age
for judges in federal courts – was practical. Uninspiring? Yes.
Sensible? Also yes. A constitutional moment? No. Yet in the
dying days of the Trump presidency, when Americans debated a
mandated retirement age for Supreme Court justices, and the
reality of brazenly ideological, judicial appointments-for-life
dawned upon many, we were reminded of our sage pragmatism
43 years ago.
The most successful referendum question in Australian history
was held in 1967, when Australians united to vote “Yes” to
grant the Commonwealth parliament competence to make laws
for Aboriginal and Torres Strait Islander peoples. It was the
highest “Yes” vote in Australian history. One of the nation’s
most uniting and defining moments. Inspiring? Yes. Pragmatic?
Yes. A constitutional moment? No.
These two referendums in some ways reflect very Australian
traits of conservatism and common sense, a quiet regard for the
practical. But now, in 2021, the nation is preparing for an
extraordinary referendum, a constitutional moment, to
implement the first step of the Uluru Statement from the Heart,
equal parts inspiring and practical, but also transformative.
But we are not there yet. Australia stands at a crossroads.
In January this year, the Minister for Indigenous Australians,
Ken Wyatt, released an interim report on his “co-design
process” of an Indigenous voice to parliament – following a
government commitment to the recommendation of the 2018
joint select committee on constitutional recognition. This
committee found that a co-design process (a bureaucratic
buzzword void of any real meaning) was needed to put “meat
on the bones” of the constitutional voice recommended by a
Referendum Council in 2017, following the issuing of the
invitation of the Uluru statement to the Australian people. In its
2019 election platform the Coalition committed to this process
as a step towards putting a voice to the Australian community at
a referendum once a model was agreed upon. It budgeted $7.3
million for the process and $160 million for a referendum,
which sits in the contingency reserve.
Despite this recent history, following the 2019 election the
minister announced that he had decided to design a “voice to
government” only, and have a referendum instead on symbolic
recognition, which virtually all First Nations peoples have
rejected.
We have now entered the second decade of constitutional
recognition. Six processes and nine reports in 10 years. And this
ninth report seeks to decouple the first decade of work, which
involved contributions from many Australians from all walks of
life, from its considerations.
The Uluru dialogues, which culminated in the First Nations
National Constitutional Convention, were unanimous that there
was no single existing entity or organisation that represented
their voice. This has been ignored as bureaucrats and their
cheerleaders have sought to neutralise the Uluru process by
insisting that, despite what the dialogues said about
powerlessness and voicelessness, there were, to the
contrary, plenty of representative mechanisms that already exist
at a state, territory and local level. Voila! These already provide a
voice. Grassroots communities were mistaken. It was like a kind
of cheery cooking show: “I whipped this one up earlier!” And
Wyatt’s interim report is replete with such examples. Historian
and sociologist Tim Rowse explains the bait and switch
effectively in his Inside Story article “Is the Voice already being
muted?”.
The 230-page interim report, which gives First Nations
communities 11 weeks to respond, contains the design
of two mechanisms, a “voice to government” and a “voice to
parliament”. The former focuses on the structure, membership,
functions and operations of the voice to government, and how
state, local and regional bodies would feed into it. But this
distracts from, and obscures, the crucial aspect of the latter: in
the Uluru proposal, a voice to parliament must be
constitutionally enshrined in order to distinguish it from the
usual voices to government, and to be independent from the
government of the day.
In all fairness, the Voice Co-Design Senior Advisory Group,
hand-picked by Wyatt, was fenced in. It was forbidden by
government from making any reference whatsoever to the Uluru
constitutional voice and banned from talking about any reform
called for by the Uluru statement.
Regardless, the limitations of the legislated voice proposed in
the interim report compel comparison with a constitutionally
protected voice. The limitations of this model include that the
government of the day itself mediates the First Nations voice –
in parliament, the government of the day would speak on behalf
of the voice. This is the antithesis of what the deliberative
dialogues sought. This approach consolidates Indigenous
structural powerlessness as well as the unaccountable exercise of
power and decision-making by the government in Indigenous
affairs (which, as the Australian National Audit Office has
found, can be arbitrary and has often fallen afoul of
Commonwealth guidelines on fairness and transparency).
Although the Wyatt-proposed legislated model empowers a
voice to some extent, it can be ignored and rendered silent by
government, as occurred with the National Aboriginal
Consultative Committee (1972–77), the National Aboriginal
Conference (1977–85), the Aboriginal and Torres Strait Islander
Commission (1989–2005) and the National Congress of
Australia’s First Peoples (2010–19). The legislated model,
without a constitutional anchor, remains subject to repeal at the
whim of the government of the day, as happened to ATSIC.
This would be much more difficult with a constitutionally
enshrined model.
The interim report also presents a bizarre eliding of government
and parliament. While Australia has an asymmetrical version of
the separation of powers, to go so far as to almost conflate the
two is to misunderstand the role of parliament. The parliament
has a representative function, an accountability function, and is
public facing. Only a seasoned bureaucrat would regard the
distinction between the two as flimsy or even imaginary. The
obfuscation on voice/government reveals the failure of political
elites to understand deeply the despair of the Uluru dialogues.
Their work in the regions was replete with civics education and a
deep understanding of the constitutional division of the
parliament, executive and judiciary, and its functioning. While
the report may view parliament as a mere extension of the
government, the Australian people, and certainly First Nations
peoples, don’t see it that way.
Of course, there is more to the Wyatt voice than is immediately
obvious. The process is deeply imbued with the
Commonwealth’s ongoing disavowal of the historical
commitment made by the nation at the 1967 referendum. One
federal politician recently declared that Aboriginal and Torres
Strait Islander peoples are largely the responsibility of the states
and territories, and the Commonwealth is, he put crassly, “just
the ATM”.
There were echoes of this walking back of 1967 in the 2018 joint
select committee report:
We have listened closely to Aboriginal and Torres
Strait Islander peoples. Discussion has highlighted
that the majority of day-to-day challenges facing
Aboriginal and Torres Strait Islander peoples do not
fall within the ambit of the national parliament. Many
of the solutions to these challenges are at the local
and regional level.
How effortlessly this disavowal rolls off the tongue. The
assertion that most aspects of Indigenous affairs are not within
the remit of the Commonwealth parliament is fiction, but goes
unchallenged. Yet it has enormous consequences for First
Nations people. Former senior federal bureaucrat Mike Dillon
wrote on this very question following last year’s signing of the
revised Closing the Gap agreement. He wrote: “Commonwealth
ministers will sleep soundly at night in the knowledge that when
everyone is accountable, no one is accountable.”
This is Australian retail politics, that of federalism, GST and
cost-shifting. It is not limited to Aboriginal and Torres Strait
Islander peoples. But the consequences are more acute for First
Nations because of the 1967 referendum. Dillon concludes of
this situation:
It is the culmination of a decade-long push to shift
Indigenous policy responsibilities away from the
Commonwealth and towards the states and territories,
and away from Indigenous-specific programs and
towards mainstream programs. On issues as diverse as
heritage protection, essential services, Indigenous
housing and legal aid, the Commonwealth has been
reducing its footprint …
Australia’s continued failure to tackle deep-seated
Indigenous disadvantage diminishes us all. The federal
government’s ongoing retreat from policy
responsibility is driven by short-term politics and
doesn’t align with the expectations of the Australian
population when they voted overwhelmingly in 1967
to give the Commonwealth the power to legislate in
relation to Aboriginal people. More insidiously, the
pretence and self-deception involved in reassuring
ourselves that we are doing all that is possible, and
that somehow the issues are “intractable” and thus
insoluble, undercut the very integrity of our
democratic culture.
The Uluru statement and the constitutionally enshrined voice to
parliament are about enhancing the integrity of our democratic
culture. A First Nations voice in the Constitution, established by
referendum, would shift Indigenous affairs out of the realm of
ideological party politics, where our issues are ruthlessly
measured against utilitarian rule. Such a voice would be imbued
with the legitimacy of the First Nations peoples and the
Australian people voting in unity at a referendum and
conducting a dialogue with each other through the parliament
for the century ahead. Symbolic and substantive.
And that is the crossroads we now face. The Uluru statement
did not ask Australians to walk with us on a journey to a
legislated voice controlled by the government of the day. So, do
we endorse a legislated voice to parliament – which no one
asked for but which serves the retail politics of Western liberal
democracy (incrementalism) and a retreat to the status quo –
while chanting “anything is better than nothing”? Or do we, as a
nation, provoke a constitutional moment, and endorse a
constitutionally protected voice to parliament, recognising that
the lack of progress and the billions of dollars wasted on
Indigenous affairs each year occurs because there is minimal
Indigenous input into laws and policies aimed at First Nations?
The crossroads where we now stand reminds me of Wiradyuri
artist Amala Groom’s painting The Fifth Element, a finalist in
the Telstra National Aboriginal and Torres Strait Islander Art
Awards, which evokes Frederick McCubbin’s 1889 iconic
work Down on His Luck. Groom says she found an old,
discoloured McCubbin print in an Aldi car park. She couldn’t
leave it there, because “it was so faded and he looked so sad –
this old bushie – I just kind of hugged the print and said, ‘It’ll be
all right, mate.’” Across the image she painted in red, We Are All
In This Together. Groom says: “The colour red symbolises the
polarity of togetherness of the bureaucracy that binds us and the
blood that we all share.” Ah, bureaucracy: two Australian
painters, Indigenous and non-Indigenous, both let down by
government, talking to each other across time.
Groom describes the painting as being based on the principle
of marrumbang, love and kindness. She says that, as
Australians, “we have more in common than we have in
difference”. Her take on McCubbin’s much-loved work was
“her way of hugging Australians and Australian history, saying
‘it’s going to be all right’”. And in that quote she sums up the
generosity of the Uluru Statement from the Heart. In 2017, we
invited you to walk with us in a movement of the Australian
people for a better future. And now is the time for Australians
to use their voice to make this happen. A constitutional moment
beckons.
MEGAN DAVIS
Megan Davis is a Cobble Cobble woman from Queensland, a
pro vice chancellor and professor of law at UNSW, and a
member of the Referendum Council.