The Problems with a Voice to Parliament and Makarrata Commission

In 2017, just after the Uluru Statement from the Heart was made the then Prime Minister Malcolm Turnbull famously rejected the idea of a Voice to Parliament for Aboriginal and Torres Strait Islanders for three reasons. The first being that referendums the vast majority of the time fail to get accepted. It’s extremely difficult to win a referendum over a controversial issue and since federation in 1901, only 8 out of 44 have been approved. The second is the fact that only Aboriginal and/or Torres Strait Islanders would be elected and allowed to elect members which violates a fundamentally important tenet in our society, racial blindness. And finally because of how the Voice would be perceived as a third chamber of Parliament.

But, with a new Government and new Prime Minister it’s clear a referendum on the Voice to Parliament is very likely on the way and so it should be. It should be put to all Australians to decide its fate. What’s important now is that all of the specifics be answered. What the Voice to Parliament would look like, how it would function, what powers it would possess, and all other relevant questions. So far however, many of these questions have only been partially answered if at all. And an example of this comes from a Senator who was unable to directly answer questions related to the process involving the advertising and creation of a Voice to Parliament. This is obviously concerning given the gravity of changing the constitution and implementing, permanently, an advisory body into the Australian government.

Naturally one can’t assume too much from a single Senators inability to directly answer pertinent questions. One can, though, understand a significant amount from a consistent inability to describe how it would help other than to say that ‘it gives a voice to those who don’t have one’, i.e. Indigenous Australians. If a Voice is something lacking, what was the purpose of ATSIC, the National Congress of Australia’s First Peoples, the Indigenous Council to the Prime Minister and what is the purpose of the Minister for Indigenous Affairs? If these advisory bodies and Ministerial didn’t achieve what they were supposed to, why didn’t they and where is the evidence that what is being proposed will do any better?

The Minister for Indigenous Affairs Linda Burney mentions in a speech given to Parliament last month that real practical solutions will come forth from this Voice should a referendum see a ‘Yes’ majority. What she fails to mention are exactly how these real practical solutions will come about and what would separate this advisory body from all its predecessors other than its inclusion in Australia’s constitution.   

Dr Anthony Dillion of Australia’s Catholic University has expressed his concern regarding a Voice to Parliament. Specifically aspects that are divisive in nature and the way in which it appears to separate Indigenous and non-Indigenous Australians as fundamentally different. And I tend to agree. If we look at what’s being proposed and even some of the terminology present in the Uluru Statement from the Heart, it appears to be the case that First Nations are in fact separate from the Australian Government. How else could an official agreement be made unless there were two separate representative bodies of people involved? And furthermore, what does this sentence present in the 2017 statement actually say, “…it captures our aspirations for a fair and truthful relationship with the people of Australia…”. Are Indigenous Australians not people of Australia?

I seek not to disparage the Uluru Statement from the Heart as I believe it comes from a good place and is genuine in nature but, I can’t help feeling that it seeks not to include but to divide. And even though a solution will supposedly come from this division, I doubt it will be a very fruitful one.

There have been some attempts to lay these claims to rest such as statements from the Prime Minister expressing directly that it will not be a third Chamber of Parliament and will be subject to the rulings and decisions set by Parliament. These are obviously necessary components and its excellent there’s been clarification from the Prime Minister himself. However, when listening to activists, supporters, and even the Minister for Indigenous Affairs Linda Burney, the lack of specificity is purposeful and will continue until a referendum has been conducted. This, as already discussed above, is concerning given the fact that the Australian constitution might be amended to include a race-based advisory body. And that race-based body, as we’re being told, will have its nature and structure outlined after the Australian people have voted for it.

This brings us to another obvious problem with the Voice to Parliament. If it’s only advising and making representations on Legislation affecting Aboriginal and Torres Strait Islanders, won’t that essentially mean all pieces of Legislation? Given Indigenous Australians are located in every major city and town, in every profession, and in every state and locality, won’t every piece of legislation that passes or is amended by the Parliament require advice from the Voice? These types of concerns are addressed through the understanding of the nature of such an advisory body. And where can such understanding be discerned if it hasn’t been specified? Often in debates and through discussions with those on either side.

But it appears that such discussions are already being vilified as unnecessary and, even, racist in nature, as mentioned by Professor Nareen Young of UTS in her appearance on an ABC program last month. Both the Yes and No Campaigns are obviously necessary in order to facilitate a national conversation wherein legitimate concerns are identified and addressed and avoid a pejorative-filled narrative. This appears not be a priority unfortunately indicating an intolerance of dissenting opinions. Q&A, a popular ABC program that discusses a wide range of issues, held a panel earlier this year to discuss the Voice and did not have a single person who didn’t support it amongst the panellists. As with most things a back and forth is necessary for middle ground to be found and flaws to be identified. With this process impeded potential issues may go unnoticed.  

I can understand the sentiment of wanting constitutional recognition of Indigenous Australians and I can sympathize. And that appears to be fundamentally what this referendum is about. Northern Territory (NT) Senator Jacinta Nampijinpa Price astutely pointed out, “…it’s not enough to pay lip service, but to actually act and commit to practical actions, I’ve yet to see that take place”. This is absolutely right, where is the evidence that practical actions will come about following the constitutional amendment and installation of an advisory body to the Australian parliament? The Indigenous Affairs Minister stated the following two months ago, “We can ensure that we lift the standard of living for First Nations people in this country, and we can see a referendum come forward for voice [to parliament] to be enshrined in the constitution,”. That would be great, but how? And how are those two things supposedly linked as they’re apparently meant to be?

As is obvious at this point, I think this particular advisory body is unlikely to help in any major way and violates the racial blindness our society upholds as a fundamental value and therefore shouldn’t be constitutionally enshrined. However, I don’t have an issue with a constitutional amendment that states the fact that people existed here prior to 1788 with a unique culture and set of practices. Or, for that matter, an advisory body that focuses specifically on issues affecting Indigenous Australians that is not constitutionally enshrined.

This brings me to the second part of this article, a proposed Makarrata commission. For those unfamiliar with the term, the word Makarrata comes from the Yolngu people of north-east Arnhem Land and essentially means ‘peace after a dispute’. The proposal put forth, as defined by the 2018 submission by the Joint Select Committee on Constitutional Recognition (submission 172), can basically be surmised as agreement-making. These agreements will be between Indigenous Australians and the Commonwealth and will likely focus on five specific things related to Indigenous Australians. Recording history, preserving culture, empowering communities to take responsibility, creating commercial opportunities and concluding agreements between governments and Indigenous Australians.

There are, however, a number of issues with such a proposal. These include a reduction in the standard of evidence required to make a claim, regard for the importance of narrative and considering harm to reputation, reparation payments and the idea of forcing someone to apologise for a crime they did not commit to people who were not its primary victims.

It’s likely with such a proposal that a ‘flexible’ approach to standards of acceptable evidence will be taken when discussing historical events and their effects. I understand the reality that not all historical events that did actually occur will have overwhelming evidence to support their status as factual but the issue with this approach is it would be very likely that an even more inaccurate picture would be painted of whatever historical event was being analysed. I certainly believe it’s preferable to have a very accurate partially completed picture as opposed to a slightly accurate complete picture. This is something that is likely to happen should the standards of evidence become too ‘flexible’. And if people are to believe potential falsehoods as historical reality, this isn’t likely to bring peace after a dispute.

What is meant by having regard for narrative and considering harm to reputation? What narratives and whose reputation? If the aim is to ascertain fact from fiction and bring about peace, isn’t the best way forward to focus on the whole truth? I’m not suggesting in the least that narratives and reputations don’t matter, I’m merely pointing out that the point of such a commission is to find the truth because historical accuracy is required for the dispute to be properly addressed.

Although not explicitly stated, reparations (or payments of a kind) are worth mentioning as a likely potentiality. How one would determine the value of a particular payment or payments for an individual, family, and/or group based on a particular historical grievance, I’ve got no idea. And why only focus on Indigenous Australians if such a path is to be traversed? Many other non-Indigenous Australians suffered, should their relatives not be compensated?

And finally, something I’ve always taken issue with, an apology by those who did not commit any wrongdoing to those who have not been that wrongdoings primary victims. Its likely official apologies are to be required in some of the settlements determined by the Commission. I take issue with this primarily because the person apologising is taking partial responsibility for something they had nothing to do with. Its almost arrogant to assume you could apologise for something you had nothing to with and furthermore does nothing to actually help redress the wrongdoing. I can understand acknowledging past policies as abhorrent, but I cannot understand apologising for them if you did not support them or weren’t even alive when they were in effect.

To bring this to a close, I’d clarify that I agree with the good intentions of what’s been proposed in both the Voice and Commission. But the intention of a policy has very little and often nothing to do with its outcomes, which are far more important. And I believe that the outcomes of both are likely not bring about the intended changes for a variety of reasons, many of which I’ve listed above.

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